On your scansheet, please indicate the best answer to each of the following questions. There is no penalty for wrong answers. No credit will be given for explanations.

1. By law, Congress vests power to appoint the clerks of the various federal courts in the chief judge of each court. These clerks maintain records and dockets and supervise personnel other than the judges themselves. This power to vest is:

I. Unconstitutional, because the President must nominate all officers of the United States.

II. Unconstitutional, because a majority of the Senators must confirm the nomination of all officers of the United States.

III. Unconstitutional, because two-thirds of the Senators must confirm the nomination of all officers of the United States.

IV. Constitutional, provided Congress enacted the law in conformance with the procedural requirements of the Constitution.

A. I only.

B. I and II.

C. I and III.

D. IV only.

Questions 2, 3, 4, and 5 are based on the following facts.

2. Many horses are bred and raised on farms in the State of Cineplex. In March 2001, a highly contagious venereal disease breaks out in the breeding sheds at three of these farms. Although the disease does not appear to have long-term effects, it does appear to prevent mares from becoming pregnant for an entire year. Given the immense value of many mares' offspring, the losses arising from this disease threaten to disrupt the entire industry. In response, Cineplex's Commissioner of Agriculture imposes the following four requirements. Which of these requirements would be most likely to violate the negative implications of the Commerce Clause (i.e., the Dormant Commerce Clause)?

A. Any farmer having custody over a horse that displays the symptoms of this disease must put the horse in quarantine.

B. All breeding of horses in the state must cease until the disease appears to have run its course.

C. All farmers must allow specialists in equine health to examine their horses -- whether symptomatic or not -- for evidence of the disease.

D. Any horse slated for shipment outside the state (whether symptomatic or not) must be put in quarantine for 30 days. If the horse shows no sign of symptoms during that period, it may be shipped out of state.

3. Please consider the requirement that "any horse slated for shipment outside the state (whether symptomatic or not) must be put in quarantine for 30 days. If the horse shows no sign of symptoms during that period, it may be shipped out of state." If someone challenged this requirement, a court would most likely:

A. Uphold the requirement, provided no effective means has been discovered to prevent the spread of the disease.

B. Strike down the requirement, because it discriminates against interstate commerce in practical effect.

C. Strike down the requirement, because it impairs interstate commerce much more than it promotes the health, welfare, safety, or morals of the population.

D. Strike down the requirement, because it overtly discriminates against interstate commerce.

4. Please consider again the requirement that "any horse slated for shipment outside the state (whether symptomatic or not) must be put in quarantine for 30 days. If the horse shows no sign of symptoms during that period, it may be shipped out of state." Which of the following parties would most likely have standing to challenge this requirement?

A. A sportswriter who covers races in Miami, Florida, many of which typically include horses raised in Cineplex.

B. A farmer who breeds horses in Cineplex.

C. A broker who purchases horses in Cineplex and ships them to customers in various parts of the state.

D. A broker who purchases horses in Cineplex and ships them to customers around the country.

5. Once again, please consider the requirement that "any horse slated for shipment outside the state (whether symptomatic or not) must be put in quarantine for 30 days. If the horse shows no sign of symptoms during that period, it may be shipped out of state." To challenge this requirement in federal court as violating federal law, a plaintiff with standing should:

A. Sue the Commissioner of Agriculture for prospective injunctive or declaratory relief.

B. Sue the Chief Justice of the State to restrain all enforcement of the requirement.

C. Sue the State of Cineplex for prospective injunctive or declaratory relief.

D. Sue the State of Cineplex for damages attributable to the requirement.

Questions 6 and 7 are based on the following facts.

6. A law of the State of Cineplex prohibits trains from blocking a grade crossing for longer than five minutes, unless it is moving, in which case it may block a crossing for up to seven minutes. As a matter of physics, this limits the length of trains or imposes a minimum speed for trains, because a train that is long, slow-moving, or both cannot move through a grade crossing in seven minutes or less. If this prohibition violates the Dormant Commerce Clause (i.e. the negative implications of the Commerce Clause), it would be because:

A. It discriminates overtly against interstate commerce.

B. It discriminates against interstate commerce in practical effect.

C. It impairs interstate commerce much more than it promotes the health, welfare, safety, or morals of the population.

D. It discriminates against individuals on the basis of their state of citizenship.

7. Assume for purposes of this Question 7 only that the Federal Railroad Safety Act authorizes the Secretary of Transportation, an officer in the executive branch of the government of the United States, to promulgate regulations governing the safety and operation of railroads that are connected to the interstate network. Also assume that the Secretary has issued regulations that allow railroads to run freight trains of up to 150 cars, and that allow engineers to slow down their trains in urban areas to permit periodic testing of air brakes. In light of these assumptions, which of the following arguments would a railroad most likely make in opposition to the state's prohibition?

A. Congress lacks the power to regulate grade crossings located entirely within one state.

B. Compliance with Cineplex's law would frustrate the purposes underlying the Federal Railroad Safety Act (and the regulations promulgated thereunder).

C. Compliance with Cineplex's law and with the Federal Railroad Safety Act (and the regulations promulgated thereunder) is physically impossible.

D. The Federal Railroad Safety Act expressly pre-empts Cineplex's law.

8. A federal criminal statute subjects any person who "owns, pays for, or controls," an "illegal gambling operation" to up to five years' imprisonment. Which of the following facts, if true, and if assessed in isolation from the others, would most support the constitutionality of this statute?

A. The statute only applies if the operation has a gross revenue of $2,000 in any single day.

B. The statute only applies if five or more persons "own, pay for, or control" the operation.

C. The statute only applies if the operation "has been or remains in substantially continuous operation for a period in excess of thirty days."

D. The statute only applies if the operation is illegal under the laws of the state in which it is conducted.

9. Congress appropriates $1 billion for public universities that agree to teach bioethics to undergraduates. Any such university that agrees to provide at least one course per year in this subject may apply for and receive a grant of up to $100,000. In exchange for this grant, the university must certify that it will use this money solely for the teaching of this subject, and that it will submit an annual report to the Comptroller General of the United States explaining exactly how the money was spent. These two requirements are:

A. Constitutional, because Congress may attach whatever conditions it pleases to the receipt of federal money.

B. Constitutional, because bioethics is an important subject that should be taught as much as possible in public universities.

C. Constitutional, because the conditions are conceptually related to the purpose of the appropriation.

D. Unconstitutional, because Congress may not attach conditions to the receipt of federal money.

10. Which of the following is a true statement about the original jurisdiction of the Supreme Court of the United States?

A. The Court has only the original jurisdiction that Congress confers upon it.

B. The Court has the original jurisdiction set forth in Article III of the Constitution.

C. The Court has the original jurisdiction set forth in Article III of the Constitution, plus whatever original jurisdiction Congress chooses to add.

D. The Court has the original jurisdiction set forth in Article III of the Constitution, minus whatever original jurisdiction Congress chooses to take away.

1. D The clerks of the federal courts are not principal officers of the United States. Therefore, Congress may vest power to appoint them in "the Courts of Law." See U.S. Const. art. II, § 2, cl. [2]. D is correct. The proviso in D simply recognizes that all acts of Congress must conform to the procedural requirements of the Constitution, as noted in INS v. Chadha. A is incorrect because, although Congress may vest power to appoint inferior officers in the President, it is not required to do so. (In addition, separation of powers might dictate that the President not have power to appoint clerks of the courts.) B is incorrect because it reflects the procedural requirements for the appointment of principal officers of the United States. C is incorrect because it reflects (obliquely) the procedural requirements for the United States to enter into a treaty.

2. D This requirement would be most likely to violate the Constitution because it overtly discriminates against interstate commerce by imposing a restriction on individuals' ability to ship horses outside the state. It is not dispositive that the requirement does not impose an absolute ban. Although such a ban would also implicate the Commerce Clause, a requirement of quarantine would provoke similar analysis. The other three requirements could, in theory, violate the Commerce Clause, but this would be unlikely. In any case, they are distinguishable from the requirement set forth in Answer D because they do not discriminate against interstate commerce overtly or in practical effect.

3. A This answer reflects the standard for laws that overtly discriminate against interstate commerce. It also reflects the fact that, on the facts as given, Cineplex's requirement would almost certainly withstand scrutiny, provided no reasonable non-discriminatory alternative is available to the quarantine. See Maine v. Taylor. (I note with interest that this requirement actually appears to hurt local industry and protect industry out of state, thus undermining any argument that the state has a protectionist motive for the quarantine. Presumably farmers in the state would want to be able to export horses -- particularly infected ones.) Answer D is second best. It identifies the applicable standard, but it reaches a conclusion that is most likely incorrect on the facts given. Answer B is incorrect because this requirement does not discriminate against interstate commerce in practical effect -- it does so overtly. Answer C is incorrect because it sets forth the standard for even-handed laws.

4. D A broker who purchases horses in the state for shipment elsewhere would most clearly have injury in fact attributable to the requirement. The other individuals identified in the answers may well be affected by the requirement, and some might even have cognizable injuries in fact, but none would be affected by the requirement to the same degree as the interstate broker.

5. A This answer reflects the "stripping doctrine" of Ex parte Young. Answer B is incorrect because, under Young, one should bring suit against the officer of the state charged with enforcing the law in question, not the officer of the state charged with interpreting the law in question. Answers C and D are incorrect because the Eleventh Amendment, as interpreted by the Supreme Court of the United States, would preclude an action against a state in federal court in either of these contexts.

6. C This prohibition probably interferes with interstate commerce more than it promotes health or safety. See Southern Pacific Co. v. Arizona. Answers A and B are incorrect because the prohibition applies to both interstate and intrastate trains. Answer D is incorrect because the prohibition applies to all trains, without regard to the state of citizenship of a train's owner.

7. B Complying with Cineplex's law would prevent railroads from taking advantage of the opportunities provided by the regulations promulgated under the federal legislation. Answer A is incorrect because it's an argument that the state would make, not a railroad. (It's also incorrect because it's a bad argument, precluded by such cases as Gibbons v. Ogden and the Shreveport Cases.) Answer C is incorrect because a railroad could physically comply with both Cineplex's law and the regulations. The regulations don't impose a requirement; they simply allow certain activities. Answer D is incorrect because the federal statute, as described in the question, does not expressly pre-empt anything.

8. A This answer best reflects the requirement in United States v. Lopez that Congress may use its powers under the Commerce Clause only to regulate intrastate phenomena that have: (1) a substantial relation to interstate commerce; and (2) some commercial significance. There is no similar connection between interstate commerce and the number of people working for an operation, the duration of an operation, or the legality of an operation under state law.

9. C Congress may attach conditions to the receipt of federal money, but its power to do so is not limitless. Answers A and D are incorrect, because Congress' power is neither all-encompassing nor non-existent. Answer B is incorrect because the wisdom of the appropriation -- just as the wisdom or lack thereof of most any law -- is usually irrelevant to the question of whether Congress has power to enact it. Answer C is correct because it reflects the test for conditional federal spending of South Dakota v. Dole. Note that Answer C does not replicate the entire test of Dole, but this answer is clearly more correct than any of the others.

10. B Answer B sets forth the proper rule. Answers A, C, and D are incorrect because they would recognize in Congress a power to restrict or enlarge the original jurisdiction of the Constitution. We know from Marbury v. Madison that Congress lacks power to add to the Court's original jurisdiction. Separation of powers would preclude Congress from reducing the Court's original jurisdiction. The Court has permitted certain parts of its original jurisdiction to be conferred concurrently on other courts, however.