Practice Exam Questions - Constitutional Law

Practice Exam Questions - Constitutional Law 2005

You could see any one of several types of questions on your final exam. One type, which you should be already familiar with, is the general “issue spotter,” which is commonly given in law school. In this type of question you will be given a hypothetical that raises a number of constitutional law issues. You will be expected to sort through the facts in order to identify the legal issues, organize your response and provide a legal analysis that sets forth the relevant rules and applies those rules in a coherent fashion. A good answer always uses the word “because” and never invokes the response “but why?” You should only discuss history, policy and theory to the extent that it helps solve the particular legal issues presented in the questions. In other words, do not provide information that is not directly useful to analyzing the legal issues presented. I expect that the essay questions of this variety on your constitutional law exam will be somewhat shorter and more focused on a smaller group of issues than you may have seen in classes such as torts or criminal law. (This is not to say that such essay questions will not involve more than one area of constitutional law. Rather, I simply don’t expect to use long, rambling fact patterns calling for application of every legal doctrine you have learned in a single essay.) A second type of question will be multiple-choice. These questions will resemble the multiple-choice questions that are used on the Multi-State Bar Examination, just like those we have used during the semester. It is important to read these questions very carefully and think through the answer choices critically. Below are sample questions similar to the questions you may see on your exam. They do not, of course, cover every subject that you might be tested on. You should try to answer these questions under exam like conditions (sticking to suggested time limits and writing out answers) and then discuss them with your colleagues before our class review sessions. Don’t panic if the answers are not immediately obvious to you. That is why we practice! Focus on developing a systematic, step-by-step approach that uses the rules to help organize your answers, applies the facts to those rules and explains all conclusions.

Sample Essay Questions

Question One (40 Minutes)

In 1995 the federal government passed the “Farm Preservation and Environmental Reclamation Act.” This legislation is designed to protect “prime farm land” from the effects of strip mining coal. (Strip mining involves scrapping off the surface of the land to uncover coal.) It requires that anyone conducting strip mining on land “historically utilized for food crops” first secure a permit from the U.S. Department of Agriculture which requires a showing of technical and financial capacity to restore the mined area to its original condition with complete soil restoration capable of producing crop yields equivalent to pre-mining levels. The law requires the various states to pass appropriate regulations setting forth detailed criteria regarding the definition of “prime farm land” and soil restoration requirements. Your client, Mr. Peabody’s Coal Train, has

1 evidence that this new law will effectively preclude him from strip mining one hundred acres of land purchased many years ago for that purpose in the state of West Virginia. Coal Train officials have also found out that there is almost no other “prime farm land” in West Virginia and that only .002 percent of “prime farm land” nationally is subject to strip mining. Please analyze any potential constitutional challenges that you might be able to raise against this statute.

Question Two (45 Minutes)

Fed up with rising crime, the Florida legislature recently passed the “Crime Prevention Act of 2005.” This statute provides that any male with an IQ under 70 and an extra “Y” chromosome, who is convicted of his third serious felony shall be involuntarily sterilized. The legislative history shows that crime rates are significantly higher among males with low IQ. There is also scientific research that demonstrates a strong correlation between violent behavior and the presence of an extra “Y” chromosome. There is a 50 % probability that this genetic characteristic will be passed from one generation to the next. The statute specifically exempts embezzlement, securities fraud and tax evasion from its coverage. Your client, who has an IQ of 60, has just been convicted of his third violent crime. He carries the extra “Y” chromosome. Present an argument challenging this statute under the U.S. Constitution.

Question Three (30 Minutes)

Michigan has excellent apples. Working hard to enhance the national reputation of its apple industry, the Michigan legislature passed a law in 2004 which requires all apples grown in Michigan be packaged in the state in a container bearing an Michigan state flag and the Michigan address of the grower. Little Joe’s Fruit is a New Mexico company that buys a wide variety of fruit from around the United States, which it packages and distributes throughout the country under the Little Joe label. Until 2004, it bought large quantities of Michigan apples, packaged them in New Mexico at its modern packing facility and shipped the fruit all over the United States. As wild (or distasteful) as this may be, you should pretend that you are now a justice on the United States Supreme Court. Please decide Little Boys’ constitutional challenge to this statute, presenting a complete summary of the parties’ legal positions in your decision.

Question Four (30 Minutes)

Florida law allow the involuntary transfer of prisoners to state run mental hospitals if the designated prison physician certifies that the prisoner suffers from a mental condition which can not be adequately treated in the prison. It also allows the forcible administration of mood altering drugs by such physicians when he or she deems it appropriate for the protection of the prisoner or others. You represent Crazy Joe Schmaltz, a prisoner who has been subjected to both the administration of drugs

2 and a pending transfer. Describe and evaluate any Constitutional challenge you might raise to this law.

Question Five (30 Minutes)

The Price-Johansen act provides the owners of nuclear power facilities shall be held liable for any nuclear power mishap only to the extent of $500,000 per accident and only on the basis of gross negligence. In 2000, President Plimpton entered into an executive agreement with 50 other countries to promote the safe use of nuclear power. This agreement provides for strict and unlimited liability for accidents at nuclear facilities that cause injury to any person outside of the facility’s country of origin. Is this a valid executive agreement?

Multiple-Choice Questions

Answer the following questions in no more than 60 minutes.

12. Congress provides by statute that any state that fails to raise the minimum age for the purchase and consumption of alcoholic beverages to twenty- one years of age shall be denied highway construction funding. The state of Novado, one of the most rural and accident free states in the country, refuses to raise its drinking age from nineteen to twenty-one.

Which of the following potential plaintiffs is most likely to be able to obtain a judicial determination of the validity of this federal statute?

(A) A taxpayer of the United States and the state of Novado who wants his state to get its fair share of federal tax monies for highways, and fears that, if it does not, his state taxes will be increased to pay for the highway construction in the state of Novado that federal funds would have financed.

(B) Contractors who have been awarded contracts by the state of Novado for specified highway construction projects, which contracts are contingent on payment to the state of the federal highway construction funds to which it would otherwise be entitled.

(C) An automobile owner who lives in the state of Novado and regularly uses its highway system.

(D) An organization dedicated to keeping the federal government within the powers granted it by the Constitution.

3 Questions 294-295 are based on the following fact situation.

The State of Yuma provides by statute, “No person may be awarded any state construction contract without agreeing to employ only citizens of the state and of the United States in performance of the contract.”

294. In evaluating the constitutionality of this state statute under the supremacy clause, which of the following would be most directly relevant?

A. The general unemployment rate in the nation B. The treaties and immigration laws of the United States C. The need of the state for this particular statute D. The number of aliens currently residing in Yuma

295. If the Yuma statute is attacked as violating the commerce clause, which of the following defenses is the WEAKEST?

A. The statute will help protect the workers of the State of Yuma from competition by foreign workers. B. The statute will help assure that workers with jobs directly affecting the performance of public contracts are dedicated to their jobs. C. The statute will help assure a continuously available and stable work force for the execution of public contracts. D. The statute will help assure that only the most qualified individuals work on public contracts.

Questions 79-80 are based on the following fact situation.

Barnes was hired as an assistant professor of mathematics of Reardon State College and is now in his third consecutive one-year contract. Under state law he cannot acquire tenure until after five consecutive annual contracts. In his third year, Barnes was notified that he was not being rehired for the following year. Applicable state law and college rules did not require either a statement of reasons or a hearing, and in fact neither was offered to Barnes.

79. Which of the following, if established, sets forth the strongest constitutional argument Barnes could make to compel the college to furnish him a statement of reasons for the failure to rehire him and an opportunity for a hearing?

A. There is no evidence that tenured teachers are any more qualified than he is. B. He leased a home in reliance on an oral promise of reemployment by

4 the college president. C. He was the only teacher at the college whose contract was not renewed that year. D. In the expectation of remaining at the college, he had just moved his elderly parents to the town in which the college is located.

80. Which of the following, if established, most strongly supports the college in refusing to give Barnes a statement of reasons or an opportunity for a hearing?

A. Barnes’ academic performance had been substandard. B. A speech he made that was critical of administration policies violated a college regulation concerning teacher behavior. C. Barnes worked at the college for less than five years. D. Barnes could be replaced with a more competent teacher.

418. Pursuant to a state statute, Clovis applied for tuition assistance to attend the Institute of Liberal Arts. He was qualified for such assistance in every way except that he was a resident alien who did not intend to become a United States citizen. The state’s restriction of such grants to United States citizens or resident aliens seeking such citizenship is probably

A. Valid, because aliens are not per se “a discrete and insular minority” specially protected by the Fourteenth Amendment. B. Valid, because the line drawn by the state for extending aid was reasonably related to a legitimate state interest. C. Invalid, because the justifications for this restriction are insufficient to overcome the burden imposed on a state when it uses such an alienage classification. D. Invalid, because the privileges and immunities clause of Article IV does not permit such an arbitrary classification.

327. A state statute requires that all buses which operate as common carriers on the highways of the states shall be equipped with seat belts for passengers. Transport Lines, an interstate carrier, challenges the validity of the statute and the right of the state to make the requirement. What is the best basis for a constitutional challenge by Transport Lines?

A. Violation of the due process clause by the Fourteenth Amendment B. Violation of the equal protection clause of the Fourteenth Amendment C. Unreasonable burden on interstate commerce

5 D. Difficulty of enforcement

The State of Aurora requires licenses of persons “who are engaged in the trade of barbering.” It will grant such licenses only to those who are graduates of barber schools located in Aurora, who have resided in the state for two years, and who are citizens of the United States.

8. The requirement that candidates for license must be graduates of barber schools in Aurora is probably

A. Unconstitutional as an undue burden on interstate commerce. B. Unconstitutional as a violation of the privileges and immunities clause of the Fourteenth Amendment. C. Constitutional, because the state does not know the quality of out-of-state barber schools. D. Constitutional, because barbering is a privilege and not a right.

9. The requirement that candidates for licenses must be citizens is

A. Constitutional as an effort to ensure that barbers speak English adequately. B. Constitutional as an exercise of the state police power. C. Unconstitutional as a bill of attainder. D. Unconstitutional as a denial of equal protection.

10. Assume that a resident of the state of Aurora was denied a license because she had been graduated from an out-of-state barber school. Her suit in federal court to enjoin denial of the license on this ground would be

A. Dismissed, because there is no diversity of citizenship. B. Dismissed because of the abstention doctrine. C. Decided on the merits, because federal jurisdiction extends to controversies between two states. D. Decided on the merits, because a federal question is involved.

11. Which of the following is the strongest ground on which to challenge the requirement that candidates for barber licenses must have been residents of the state for at least two years?

A. The privileges and immunities clause of the Fourteenth Amendment B. The due process clause of the Fourteenth Amendment. C. The equal protection clause of the Fourteenth Amendment

6 D. The obligation of contracts clause

Ben was the illegitimate, unacknowledged child of Fred. Fred died intestate, leaving neither spouse nor any children other than Ben. The state’s law of intestate succession provides that an unacknowledged illegitimate child may not inherit his father’s property. The spouse, all other blood relatives, and the state are preferred as heirs over the unacknowledged illegitimate child. Ben filed suit in an appropriate court alleging that the state statute barring an illegitimate child from sharing in a parent’s estate is invalid, and that he should be declared lawful heir to his father’s estate.

106. In challenging the validity of the state statute, Ben’s strongest argument would be that

A. There is no rational basis for preferring as heirs collateral relatives and even the state over unacknowledged children, and, therefore, the law violates the equal protection clause. B. He has been deprived of property without due process because his fundamental right to inherit has been compromised without a compelling state need. C. It violates the privileges and immunities clause of the Fourteenth Amendment. D. It is a denial of procedural due process because it does not give the unacknowledged illegitimate child an opportunity to prove paternity.

107. The state’s strongest defense of the statute would be that

A. The authority of a state over the disposition of decedents’ property located in the state is not affected by the Constitution of the United States. B. A statute prescribing the means of disposing of the property of intestate decedents does not constitute invidious discrimination. C. Inheritance under intestate succession laws is a privilege, not a right, and therefore is not protected as property under the due process clause. D. Its interest in promoting family life and in encouraging the formal acknowledgment of paternity gives the law a rational basis.

Congress provides by statute that any state that fails to prohibit automobile speeds of over 55 miles per hour on highways within the state shall be denied all federal highway construction funding. The state of Atlantic, one of the richest and most highway-

7 oriented states in the country, refuses to enact such a statute.

233. Which of the following potential plaintiffs is most likely to be able to obtain a judicial determination of the validity of this federal statute?

A. A taxpayer of the United States and the state of Atlantic who wants his state to get its fair share of federal tax monies for highways, and fears that, if it does not, his state taxes will be increased to pay for the highway construction in the state of Atlantic that federal funds would have financed. B. Contractors who have been awarded contracts by the state of Atlantic for specific highway construction projects, which contracts are contingent on payment to the state of the federal highway construction funs to which it would otherwise be funded. C. An automobile owner who lives in the state of Atlantic and regularly uses its highway system. D. An organization dedicated to keeping the federal government within the powers granted it by the Constitution.

234. The strongest argument that can be made in support of the constitutionality of this federal statute is that

A. The states ceded their authority over highways to the national government when the states accepted federal grants to help finance their highways. B. The federal government can regulate the use of state highways without limitation because the federal government paid for some of their construction costs. C. Congress could reasonably believe that the 55 mile-an-hour speed limit will assure that the federal money spent on highways results in greater benefit than the harm to the public. D. A recent public opinion survey demonstrated that 90 percent of the people in this country support a 55 mile-an-hour speed limit.

235. The federal statute relating to disbursement of highway funds conditioned on the 55 mile-an-hour speed limit is probably

A. Unconstitutional. B. Constitutional only on the basis of the spending power. C. Constitutional only on the basis of the commerce power. D. Constitutional on the basis of both the spending power and the commerce power.

Three states, East Winnetka, Midland, and West Hampton, are located next to one

8 another in that order. The states of East Winnetka and West Hampton permit the hunting and trapping of snipe, but the state of Midland strictly forbids it in order to protect snipe, a rare species of animal, from extinction. The state of Midland has a state statute that provides “possession of snipe traps is prohibited. Any game warden finding a snipe trap within the state shall seize and destroy it.” Snipe traps cost about $15 each.

Prentis is a resident of West Hampton and an ardent snipe trapper. She drove her car to East Winnetka to purchase a new improved snipe trap from a manufacturer there. In the course of her trip back across Midland with the trap in her car, Prentis stopped in a Midland state park to camp for a few nights. While she was in that park, a Midland game warden saw the trap, which was visible n the front seat of her car. The warden seized the trap and destroyed it in accordance with the Midland statute after Prentis admitted that the seized item was a prohibited snipe trap. No federal statutes or federal administrative regulations apply.

481. For this question only, assume that Prentis demonstrates that common carriers are permitted to transport snipe traps as cargo across Midland for delivery to another state and that in practice the midland statute is enforced only against private individuals transporting those traps in private vehicles. If Prentis challenges the application of the Midland statute to her on the basis only of a denial of equal protection, the application of the statute will probably be found

A Constitutional, because the traps constitute contraband in which Prentis could have no protected property interest. B. Constitutional, because there is a rational basis for differentiating between the possession of snipe traps as interstate cargo by common carriers and the possession of snipe traps by private individuals. C. Unconstitutional, because the state cannot demonstrate a compelling public purpose for making this differentiation between common carriers and such private individuals. D. Unconstitutional, because interstate travel is a fundamental right that may not be burdened by state law.

482. For this question only, assume that a valid federal administrative rule, adopted under a federal consumer product safety act, regulates the design of snipe traps. The rule was issued to prevent traps from causing injury to human beings, e.g., by pinching fingers while persons were setting the traps. No other federal law applies. Which of the following best states the effect of the federal rule on the Midland state statute?

A. The federal rule preempts the Midland state statute, because the federal rule regulates the same subject matter, snipe traps. B. The federal rule preempts the Midland state statute, because the federal rule does not contain affirmative authorization for continued state 9 regulation. C. The federal rule does not preempt the Midland state statue, because `the Midland state statute regulates wild animals, a field of exclusive state power. D. The federal rule does not preempt the Midland state statute, because the purposes of the federal rule and the midland state statute are different.

427. A statute of the state of Lanape flatly bans the sale or distribution of contraceptive devices to minors. Drugs, Inc., a national retailer of drugs and related items, is charged with violating the Lanape statute. Which of the following is the strongest constitutional argument Drugs, Inc., could make in defending itself against prosecution for violation of this statute?

A. The statute constitutes an undue burden on interstate commerce. B. The statute denies minors one of their fundamental rights without due process. C. The statute denies Drugs, Inc., a privilege or immunity of state citizenship. D. The statute violates the First Amendment right to freedom of religion because it regulates morals.

462. A state statute requires the permanent removal from parental custody of any child who has suffered “child abuse.” That term is defined to include “corporal punishment of any sort.”

Zeller very gently spanks his six-year old son on the buttocks whenever he believes that spanking is necessary to enforce discipline on him. Such spanking occurs not more than once a month and has never physically harmed the child.

The state files suit under the statute to terminate Zeller’s parental rights solely because of these spankings. Zeller defends only on the ground that the statute in question is unconstitutional as applied to his admitted conduct. In light of the nature of the rights involved, which of the following is the most probably burden of persuasion on this constitutional issue?

A. The state has the burden of persuading the court that the application of this statute to Zeller is necessary to vindicate an important state interest. B. The state has the burden of persuading the court that the application of this statute to Zeller is rationally related to a legitimate state interest. C. Zeller has the burden of persuading the court that the application of this statute to him is not necessary to vindicate an important state interest.

10 D. Zeller has the burden of persuading the court that the application of this statute to him is not rationally related to a legitimate state interest.

463. According to a statute of the state of Kiowa, a candidate for state office may have his name placed on the official election ballot only if he files with the appropriate state official a petition containing a specified number of voter signatures. Roderick failed to get his name placed on the state ballot as an independent candidate for governor, because he failed to file a petition with the number of voter signatures required by state statute. In a suit against the appropriate state officials in federal district court, Roderick sought an injunction against the petition signature requirement on the ground that it was unconstitutional.

Which of the following, if established, constitutes the strongest argument for Roderick?

A. Compliance with the petition signature requirement is burdensome. B. The objectives of the statute could be satisfactorily achieved by less burdensome means. C. Because of the petition signature requirement, very few independent candidates have ever succeeded in getting on the ballot. D. The motivation for the statute was a desire to keep candidates off the ballot if they did not have strong support among voters.

284. The State of Missoula has enacted a new election code designed to increase voter responsibility in the exercise of the franchise and to enlarge citizen participation in the electoral process. None of its provisions conflicts with federal statutes.

Which of the following is the strongest reason for finding unconstitutional a requirement in the Missoula election code that each voter must be literate in English?

A. The requirement violates Article I Section 2 of the Constitution, which provides that representatives to Congress be chosen “by the People of the several States.” B. The requirement violates Article I, Section 4 of the Constitution, which gives Congress the power to “make or alter” state regulations providing for the “Times” and “Manner” of holding elections for senators and representatives. C. The requirement violates the due process clause of the Fourteenth Amendment. D. The requirement violates the equal protection of the laws clause of the Fourteenth Amendment.

316. A state accredits both public and private schools, licenses their teachers and supplies textbooks on secular subjects to all such schools. Country Schoolhouse, a private school that offers elementary and secondary education in the state, denies admission to all non-Caucasians. In a suit to enjoin as unconstitutional the continued racially exclusionary admissions policy of the Country Schoolhouse, which of the following is the strongest argument AGAINST the school?

A. Because education is a public function, the Country Schoolhouse may not discriminate on racial grounds. B. The state is so involved in school regulation and support that the equal protection clause of the Fourteenth amendment is applicable to the school. C. The state is constitutionally obligated to eliminate segregation in all public and private educational institutions within the state. D. Any school with teachers who are licensed by the state is forbidden to discriminate on racial grounds.

342. Pine, aged 25, contemplated marrying Ross, aged 25. Both are residents of the state of Champlain. Pine has not yet proposed to Ross because he is offended by the counseling requirement.

Pine sues in court seeking a declaratory judgment that the Young Adult Marriage Counseling Act is unconstitutional. Which of the following is the clearest ground for dismissal of this action by the court?

A. Pine and Ross are residents of the same state. B. No substantial federal question is presented. C. The suit presents a non-justifiable political question. D. The suit is unripe.

343. In a case in which the constitutionality of the Young Adult Marriage Counseling Act is in issue, the burden of persuasion will probably be on the

A. Person challenging the law, because there is a strong presumption that elected state legislators acted properly. B. Person challenging the law, because the Tenth Amendment authorized states to determine the conditions on which they issue marriage licenses. C. State, because there is a substantial impact on the right to marry, and that right is fundamental. D. State, because there is a substantial impact in the discrete and insular class of young adults.

12 362. A federal statute requires United States civil service employees to retire at age 75. However, that statute also states that civil service employees of the armed forces must retire at age 65.Prentis, a 65-year-old service employee of the Department of the Army, seeks a declaratory judgment that would forbid his mandatory retirement until age 75.

The strongest argument that Prentis can make to invalidate the requirement that he retire at age 65 is that the law

A. Denies him a privilege or immunity of national citizenship. B. Deprives him of a property right without just compensation. C. Is not within the scope of any of the enumerated powers of Congress in Article I, '8. D. Individiously discriminates against him on the basis of age in violation of the Fifth Amendment.

517. A state statute provides that only citizens of the United States may be employed by that state. In an action brought in a federal court, a resident alien who was prevented from obtaining state employment as a garbage collector solely because of his alien status challenged the statute’s constitutionality as applied to his circumstances.

Which of the following statements concerning the burden of persuasion applicable to this suit is correct?

A. The alien must demonstrate that there is no rational relationship between the citizenship requirement and any legitimate state interest. B. The alien must demonstrate that the citizenship requirement is not necessary to advance an important state interest. C. The state must demonstrate that there is a rational relationship between the citizenship requirement and a legitimate state interest. D. The state must demonstrate that the citizenship requirement is necessary to advance an important state interest.

557. After several well-publicized deaths caused by fires in products made from highly flammable fabrics, the state of Orange enacted a statute prohibiting “the manufacture or assembly of any product in this state which contains any fabric that has not been tested and approved for flame retardancy by the Zetest Testing Company.” The Zetest Testing Company is a privately owned and operated business located in Orange.

For many years, Fabric Mill, located in the state of Orange, has had its fabric tested for flame retardancy by the Alpha Testing Company, located in the state of Green. Alpha Testing Company is a reliable organization that uses a process for testing and

13 approving fabrics for flame retardancy identical in all respects to that used by the Zetest Testing Company.

Because Fabric Mill wishes to continue to have its fabric tested solely by Alpha Testing Company, Fabric Mill files an action in Orange state court challenging the constitutionality of the Orange statute as applied to its circumstances.

In this suit, the court should hold the statute to be

A. Constitutional, because it is reasonably related to the protection of the reputation of the fabric industry located in the state of Orange. B. Constitutional, because it is a legitimate means of protecting the safety of the public. C. Unconstitutional, because it denies to Fabric Mill the equal protection of the laws. D. Unconstitutional, because it imposes an unreasonable burden on interstate commerce.

571. The National AIDS Prevention and Control Act is a new, comprehensive federal statute that was enacted to deal with the public health crisis caused by the AIDS virus. Congress and the President were concerned that inconsistent lower court rulings with respect to the constitutionality, interpretation, and application of the statute might adversely affect or delay its enforcement and, thereby, jeopardize the public health. As a result, they included a provision in the statute providing that all legal challenges concerning those matters may be initiated only by filing suit directly in the United States Supreme Court.

The provision authorizing direct review of the constitutionality, interpretation, or application of this statute only in the United States Supreme Court is

A. Constitutional, because it is authorized by the Article I power of Congress to enact all laws that are “necessary and proper” to implement the general welfare. B. Constitutional, because Article III provides that the jurisdiction of the United States Supreme Court is subject to such exceptions and such regulations as Congress shall make. C. Unconstitutional, because it denies persons who wish to challenge this statute the equal protection of the laws by requiring them to file suit in a court different from that in which persons who wish to challenge other statutes may file suit. D. Unconstitutional, because it is inconsistent with the specification in Article III of the original jurisdiction of the United States Supreme Court.

577. Small retailers located in the state of Yellow are concerned about the loss of

14 business to certain large retailers located nearby in bordering states. In an effort to deal with this concern, the legislature of Yellow enacted a statute requiring all manufacturers and wholesalers who sell goods to retailers in Yellow to do so at prices that are no higher than the lowest prices at which they sell them to retailers in any of the states that border Yellow. Several manufacturers and wholesalers who are located in states bordering Yellow and who sell their goods to retailers in those states and in Yellow bring an action in federal court to challenge the constitutionality of this statute.

Which of the following arguments offered by these plaintiffs is likely to be most persuasive in light of applicable precedent?

The state statute

A. Deprives them of their property or liberty without due process of law. B. Imposes an unreasonable burden on interstate commerce. C. Deprives them of a privilege or immunity of national citizenship. D. Denies them the equal protection of the laws.

96. The legislature of State X enacts a statute that it believes reconciles the state’s interest in the preservation of human life with a woman’s right to reproductive choice. That statute permits a woman to have an abortion on demand during the first trimester of pregnancy but prohibits a woman from having an abortion after that time unless her physician determines that the abortion is necessary to protect the woman’s life or health.

If challenged on constitutional grounds in an appropriate court, this statute will probably be held

A. Constitutional, because the state has made a rational policy choice that creates an equitable balance between the compelling state interest in protecting fetal life and the fundamental right of a woman to reproductive choice. B. Constitutional, because recent rulings by the United States Supreme Court indicate that after the first trimester a fetus may be characterized as a person whose right to life is protected by the due process clause of the Fourteenth Amendment. C. Unconstitutional, because the state has, without adequate justification, placed an undue burden on the fundamental right of a woman to reproductive choice prior to fetal viability. D. Unconstitutional, because a statute unqualifiedly permitting abortion at one stage of pregnancy, and denying it at another with only minor exceptions, establishes an arbitrary classification in violation of the equal protection clause of the Fourteenth Amendment.

15 162. Company wanted to expand the size of the building it owned that housed Company’s supermarket by adding space for a coffeehouse. Company’s building was located in the center of five acres of land owned by Company and devoted wholly to parking for its supermarket customers.

City officials refused to grant a required building permit for the coffeehouse addition unless Company established in its store a child care center that would take up space at least equal to the size of the proposed coffeehouse addition, which was to be 20% of the existing building. This action of City officials was authorized by provisions of the applicable zoning ordinance.

In a suit filed in state court against appropriate officials of City, Company challenged this child care center requirement solely on constitutional grounds. The lower court upheld the requirement even though City officials presented no evidence and made no findings to justify it other than a general assertion that there was a shortage of child care facilities in City. Company appealed.

The court hearing the appeal should hold that the requirement imposed by City on the issuance of this building permit is

A. Constitutional, because the burden was on Company to demonstrate that there was no rational relationship between this requirement and a legitimate governmental interest, and Company could not do so because the requirement is reasonably related to improving the lives of families and children residing in City. B. Constitutional, because the burden was on Company to demonstrate that this requirement was not necessary to vindicate a compelling governmental interest, and Company could not do so on these facts. C. Unconstitutional, because the burden was on City to demonstrate that this requirement was necessary to vindicate a compelling governmental interest, and City failed to meet its burden under that standard. D. Unconstitutional, because the burden was on City to demonstrate a rough proportionality between this requirement and the impact of Company’s proposed action on the community, and City failed to do so.

170. Congress wishes to enact legislation prohibiting discrimination in the sale or rental of housing on the basis of the affectional preference or sexual orientation of the potential purchaser or renter. Congress wishes this statute to apply to all public and private vendors and lessors of residential property in this country, with a few narrowly drawn exceptions.

The most credible argument for congressional authority to enact such a statute would be based upon the

16 A. General welfare clause of Article I, Section 8, because the conduct the statute prohibits could reasonably be deemed to be harmful to the national interest. B. Commerce clause of Article I, Section 8, because in aggregate, the sale or rental of almost all housing in this country could reasonably be deemed to have a substantial effect on interstate commerce. C. Enforcement clause of the Thirteenth Amendment, because that amendment clearly prohibits discrimination against the class of persons protected by this statute. D. Enforcement clause of the Fourteenth Amendment, because that amendment prohibits all public and private actors from engaging in irrational discrimination.