Constitutional Law, Professor Donoho

Problem Set #1, Justiciability[1] -- Annotated

34.Congress recently enacted a statute imposing severe criminal penalties on anyone engaged in trading in the stock market who, in the course of that trading, takes "unfair advantage" of other investors who are also trading in the stock market. The statute does not define the term "unfair advantage." There have been no prosecutions under this new statute. The members of an association of law school professors that is dedicated to increasing the clarity of the language used in criminal statutes believe that this statute is unconstitutionally vague. Neither the association nor any of its members is currently engaged in, or intends in the future to engage in, trading in the stock market. The association and its members bring suit against the Attorney General of the United States in a federal district court, seeking an injunction against the enforcement of this statute on the ground that it is unconstitutional.

May the federal court determine the merits of this suit?

(A)Yes, because the suit involves a dispute over the constitutionality of a federal statute.

Obviously too vague…and wrong in literal sense

(B)Yes, because the plaintiffs seek real relief of a conclusive nature--an injunction against enforcement of this statute.

Example of the red herring irrelevant answer…the “huh” answer which deploys the wrong language, attractive but misleading reasons that lure in someone with limited knowledge

(C)No, because the plaintiffs do not have an interest in the invalidation of this statute that is adequate to ensure that the suit presents an Article III controversy.

Not great but the Best answer only correct one possible here & no direct concrete palpable injury, also a generalized grievance

(D)No, because a suit for an injunction against enforcement of a criminal statute may not be brought in federal court at any time prior to a bona fide effort to enforce that statute.

Hidden ripeness reference…label is often not given; but here not true proposition

89.A federal statute provides that the United States Supreme Court has authority to review any case filed in a United States Court of Appeals, even though that case has not yet been decided by the court of appeals.

The Environmental Protection Agency (EPA), an agency in the executive branch of federal government, issued an important rule. Although the rule had not yet been enforced against them, companies that would be adversely affected by the rule filed a petition for review of the rule in a court of appeals, seeking a declaration that the rule was invalid solely because it was beyond the statutory authority of the EPA. The companies made no constitutional claim. A statute specifically provides for direct review of EPA rules by a court of appeals without any initial action in a district court.

The companies have filed a petition for a writ of certiorari in the Supreme Court requesting immediate review of this case by the Supreme Court before the court of appeals has actually decided the case. The EPA acknowledges that the case is important enough to warrant Supreme Court review and that it should be decided promptly, but it asks the Supreme Court to dismiss the petition on jurisdictional grounds.

The best constitutional argument in support of the EPA's request is that

(A)the case is not within the original jurisdiction of the Supreme Court as defined by Article III, and it is not a proper subject of that court's appellate jurisdiction because it has not yet been decided by any lower court.

Best – very few cases within original jurisdiction; here no trial, not appellate…

(B)the case is appellate in nature, but is beyond the appellate jurisdiction of the Supreme Court, because Article III states that its jurisdiction extends only to cases arising under the Constitution.

False statement – federal q jurisdiction, diversity, etc

(C)Article III precludes federal courts from reviewing the validity of any federal agency rule in any proceeding other than an action to enforce the rule.

Veiled reference to ripeness perhaps but also not true

(D)Article III provides that all federal cases, except those within the original jurisdiction of the Supreme Court, must be initiated by an action in a federal district court.

False…it does not….

After the environmental disaster caused by the shipwreck of the Exxon Valdez oil tanker, Congress enacted a statute providing that persons may challenge any state energy law governing the transportation of petroleum products on the ground that is in conflict with the federal Constitution in either federal or state court. According to this federal statute, any decision by a lower state court upholding a state energy law against a challenge based on the federal Constitution may be appealed directly to the United States Supreme Court.

The provisions of this statute that authorize direct United States Supreme Court review of specified decisions rendered by lower state courts are:

(1)Constitutional, because congressional control over questions of energy usage is plenary.

Irrelevant to the jurisdictional q…and an overstatement

(2)Constitutional, because Congress may establish the manner in which the appellate jurisdiction of the United States Supreme Court is exercised.

Best- true, true

(3)Unconstitutional, because they infringe the sovereign right of states to have their supreme courts review decisions of their lower state courts.

No such right exists in the Constitution…and certainly not regarding federal questions

(4)Unconstitutional, because under Article III of the Constitution the United States Supreme Court does not have authority to directly review decisions of lower state courts. False

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.

No standing…taxpayers general interest not direct enough, etc…flast exception for establishment clause very limited (NB: elimination of fed $, not really taxing Q!)

(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.

Best – direct injury, etc

Conjecture only…speculative injury insufficient

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

No identifiable direct injury, abstract interests, generalized

The President of the United States has broken off diplomatic relations with the government of Irate, due to that nation=s military takeover of a neighboring country. Irate is governed by a repressive totalitarian government.

In an appropriate federal court, Saunders brings a suit against the President and Secretary of State to set aside this action on the ground that is inconsistent with the principles of our constitutional form of government. Sanders had a lucrative contract with the United States Department of Commerce to provide commercial information about Irate. The contract expressly terminates, however, Awhen the President breaks off diplomatic relations with the government of Irate.@

Which of the following is the most proper disposition of the Sanders suit by the federal court?

(1)Suit dismissed, because Sanders does not have standing to bring this action.

But he does have standing!

(2)Suit dismissed, because there is no adversity between Sanders and the defendants.

But they are adverse

(3)Suit dismissed, because it presents a nonjusticiable political question.

Only possible answer given – and likely area for PQ since it involves discretionary policy judgments regarding foreign affairs

(4)Suit decided on the merits.

naw

Roscoe, the father of two children enrolled in CambridgeElementary School, a public school, was very upset that school time was devoted to health and sex education. On a weekday at 12:00 noon, he delivered an excited, animated, and loud speech on the sidewalk of the school district administration building in front of the main entryway. An audience of 200 onlookers, who gathered on the steps, heckled him and laughed as he delivered his tirade. Roscoe repeatedly stated, gesturing expressively and making faces, that Athe goddamned school administration is poisoning the minds of our schoolchildren,@ and that AI will strangle every one of those goddamned administrators I can get hold of because this sex education crap proves they are all too evil to live.@ After about fifteen minutes, Roscoe stopped speaking, and the amused crowd dispersed.

There are three relevant statutes in the jurisdiction. The first statute prohibits Aall speech making, picketing, and public gatherings of every sort in front of the main entryway to any government building during high traffic periods while the government building is being used for official government business.@

Which of the following possible plaintiffs other than Roscoe would be most likely to obtain an adjudication in a federal court on the validity of this statute?

(1)A state taxpayer in the highest tax bracket.

Usual taxpayer no standing answer

(2)A school administrator intending to make a campaign speech at the administration building entryway during a prohibited time.

Best – direct injury but …intending enough for imminent injury?1st amend chill

(3)A legislator who voted against the statute because he thought it was unconstitutional.

No special standing privileges for legislators- what injury?

(4)An organization whose primary purpose was Ato seek judicial invalidation of unconstitutional laws.@ abstract interests, generalized

The military junta which ruled Pacifica was an ally of the United States. That government was overthrown by a communist group which committed such atrocities at the time of the take-over that public opinion in the U.S. was outraged. As a result, the U.S. had refused to recognize Communist Pacifica for twenty years. Recently, however, the President of the United States has decided to recognize Communist Pacifica in the interest of promoting international trade which will benefit U.S. industry.

The C.H.O.P. is an organization which has opposed the reopening of diplomatic relations. Harris, one of its members, has a government contract to provide information about educational institutions within Communist Pacifica. Harris will lose this contract when normal diplomatic relations are restored.

Harris brings suit in a federal court to set aside the President=s action on the grounds that it is inconsistent with the principles of our constitutional form of government.

What is the most likely disposition of Harris= suit?

(1)The suit will be heard on the merits.

Possible answer but only if justiciable….

(2)The suit will be dismissed because it involves a nonjusticiable political question.

Best –foreign affairs, discretionary judgment, finality, etc

(3)The suit will be dismissed because there is no diversity between Harris and the defendants.

Huh?

(4)The suit will be dismissed because Harris does not have standing to bring the suit.

Read carefully – contract put in to show injury

(1) In 2002, the City of Jacksonville, Florida created a "minority set-aside" program which requires that a "15% bidding allowance" be granted to any "minority owned" business seeking participation in city public works projects. Jose's Good Construction Company, which meets the requirements for classification as a "minority owned" business, has just been awarded a city contract for bridge repair work. The City awarded the contract to Jose's over a competing bid by "WASPY Construction" even though Jose's bid was nearly 10% higher.

A federal court hearing WASPY's claims should:

A) Dismiss the action because WASPY can not show that the minority owned business preference caused it to lose a contract that it would have otherwise secured.

Could be argued but still suffered the lost equal opportunity to bid

B)Dismiss because the case is not yet ready for judicial resolution.

No grounds for arguing ripeness in facts

C)Accept jurisdiction over WASPY's claims because the challenged program deprived WASPY of an equal opportunity to bid on the contract.

Best answer

D)Accept juridiction over WASPY's claims because WASPY may have been the successful bidder if not for the minority owned business preference.

“may have” is insufficient to show the req’d causal connection/ redressability

(2)On January 1, 2002, Florida increased the minimum age for males to obtain a driver's license to 18. Johnny, who turned 16 on January 2, 2002, brought a class action lawsuit in federal court seeking to enjoin application of the statute on grounds that it constitutes a denial of equal protection. Johnny's lawsuit has still not been decided on January 3, 2004, when he obtains his driver's license.

Should the court dismiss Johnny's claims?

A)No because Johnny's claims are capable of repetition but will again escape review.

B)Yes because Johnny is no longer subject to the challenged law.

C)No because members of the plaintiff class are still unable to receive a driver's license because of their age and gender. CORRECT – CLASS ACTION EXCEPTION TO MOOTNESS

D)Yes because the federal courts have no jurisdiction to decide questions of state law such as the requirements for obtaining a driver's license.

(3) Plankton was convicted of larceny for stealing a copy of the secret crabby patty formula. Several jurors told the press after the trial that they had assumed Plankton's guilt from the beginning of the trial simply because he was green. Under the laws of Bikini Bottom, Plankton can no longer hold public office because he is a convicted felon. Plankton appealed his conviction but served his six months sentence in the Bikini Bottom jailhouse before his appeal could be decided. The government now asks the federal appellate court to dismiss Plankton's appeal.

The appeals court should:

A)Decide Plankton's appeal because his conviction was manifestly in violation of the Constitution.

So what? If moot, this is irrelevant (so incomplete and inaccurate answer here)

B)Decide Plankton's appeal because he can no longer serve in public office.

CORRECT – LINGERING COLLATERAL CONSEQUENCES KEEP ISSUES FROM BEING MOOT

C)Dismiss Plankton's appeal because he has already served his sentence.

D)Decide Plankton's appeal because his wrongful conviction is capable of repetition yet evading review.

[1]The first 7 questions were taken verbatim from bar exam questions released by the National Conference of Bar Examiners (from prior bar exams).