Stephens and Scheb, American Constitutional Law, 2nd ed.

Hypothetical Questions for Classroom Discussion

Suppose that Congress in a very close vote gives the President "fast track" authority to negotiate trade agreements with other countries. Essentially, this means that Congress cannot propose amendments to any trade agreement; it can only vote yes or no on the entire agreement as negotiated by the President. After signing the bill, the President announces his intention to quickly conclude a new trade agreement with Japan and submit the agreement to Congress for fast track approval. Several members of Congress from both houses who voted against the legislation decide to go to court to block its implementation. Would these members have standing to bring this suit? What arguments would the plaintiffs make to support their claim of standing to sue? Whom would they name as defendants in the lawsuit? Assuming the plaintiffs have standing, what other threshold issues might come into play? Assuming the federal district court reaches the merits of this case, what arguments would the plaintiffs likely make in attacking the constitutionality of fast track legislation? If you were the federal district judge presiding in this case, how would you be likely to rule? How would the current Supreme Court dispose of this litigation?What are the constitutional, political and prudential considerations surrounding lawsuits generally involving members of Congress and the Executive Branch?

The City of Utopia was experiencing difficulties with groups of rowdy individuals congregating on the sidewalks in the downtown area. The police were unable to control the situation by enforcement of laws making disorderly conduct an offense. In order to maintain the downtown business section appealing to customers, the city commission enacted an ordinance that provided: "It shall be unlawful for three or more persons to assemble on any public sidewalk or walkway within the city while conducting themselves in a manner annoying to surrounding persons." The ordinance imposed a fine for anyone who violated its provisions. After the ordinance became effective, three college students congregated on a public sidewalk in Utopia and in a loud manner made smart remarks to passersby. The police arrested the three and they are being prosecuted by the court that has jurisdiction over ordinance violations in Utopia. The three students acknowledge their rowdiness, but they pled not guilty, because they believe their actions were within the protections of the First Amendment. They have retained an attorney to represent them. What arguments do you think their defense attorney will likely advance on their behalf?

An adult male who is admittedly homosexual holds college degrees in elementary education and is certified by his state board. He applies to fill a vacancy to teach the third grade in a public school. The school board finds him qualified but rejects him solely on the basis that "a homosexual is not a proper role model for elementary students." If the teacher chooses to challenge the school board’s rejection, what constitutional principles will likely come into play?

Cal Rosario, an off-duty police officer, received information from a local citizen that Otto Ruffer was growing marijuana plants at his residence in a suburb of Pottsville, Anystate. Officer Rosario called the police station and enlisted the aid of two officers to investigate. The two officers drove to Ruffer’s residence. When they arrived it was dark, and as they walked through Ruffer’s side yard into his back yard they saw a greenhouse with plastic sheets draped over its frame. It was located about twenty yards from the back door to Ruffer’s house. One of the officers shined his flashlight into a tear in the plastic and observed marijuana plants inside. The officers did not attempt to obtain a search warrant. Rather, they seized the plants and arrested Ruffer. The state prosecuted Ruffer for unlawful manufacture of marijuana. Ruffer’s attorney moved the court to suppress the marijuana on the ground that the warrantless search was invalid. He stated, "Ruffer’s greenhouse was within the curtilage of his residence, essentially part of his homeplace, and Ruffer maintained the greenhouse for his own personal purposes." Further, the defense contended that the officers trespassed in order to observe the plants and this was an intrusion on Ruffer’s privacy. Thus, the defense attorney argued there was no basis for a warrantless search. The prosecutor urged that no search warrant was required since the officers were able to see the marijuana and that the area searched was not Ruffer’s home. Thus, the prosecutor maintained that the greenhouse was outside the scope of Fourth Amendment protection against unreasonable searches and seizures. What should be the court’s ruling? Give reasons for your answer.

During the 1920s more than a dozen persons died as a result of handling rattlesnakes during relgious services in several rural churches in the state of Catawba. Responding to this situation, the Catawba legislature enacted a law making it a misdemeanor "to handle poisonous reptiles as part of a religious service or ceremony." The law went unenforced for many years, until the issue of snake handling arose during a campaign for district attorney in Bullseye County in rural Eastern Catawba. The incument D.A., Virgil Snipe, was invited to a service at the Lazarus Independent Holiness Tabernacle. At the service, Snipe observed an itinerant minister, Silas Deadman, handling four rattlesnakes and drinking a bottle of liquid he claimed to be cynanide. Two days later, Snipe announced that he intends to prosecute Silas Deadman under the state law prohibiting the handling of poisonous snakes during religious services. Jared Inbread, a local attorney and lay preacher, who is also Snipes principal challenger in the race for district attorney, stated publicly that he opposed the decision to prosecute and that, if elected, he would do all he could to have the law repealed. The following day, Silas Deadman, who had yet to be arrested or indicted, filed suit in federal district court seeking a declaratory judgment that the law is unconstitional and a permanent injunction barring its enforcement. If you were the federal judge, what issues would you consider in addressing this controversy?

In response to the growing violence in the public schools, and the increasing pressure to deal with the mounting problem of juvnile crime, the county of Draconia passed an ordinance appropriating $40,000 for the construction and maintenance of a "whipping post" on the public square in the county seat of Rigorsville. In a separate ordinance, the county specified that all juveniles adjudged by the juvenile court to be delinquent would be subject to public whipping, the number of lashes up to maximum of twenty, to be determined by the court. Grinder Switch, the elderly presiding judge of the juvenile court has just sentenced Lucy Lightfingers, a fourteen year old girl with no previous juvenile record, to receive five lashes for the offense of shoplifting. The punishment is to be administered next Saturday at noon on the public sqaure and will be the first occasion in which the new whipping post is employed. Lightfinger’s parents, backed by the local chapter of the ACLU, petition you, as the Chief Judge of the Circuit Court, to issue an order barring enforcement of the sentence. The ACLU’s attorney has a filed a brief arguing that subjecting juveniles with no previous record of offenses to public corporal punishment violates the Eighth and Fourteenth Amendments. How would you decide this case and what reasons would you advance in support of your decision?

The Whitebread Athletic Club is a private social club located in downtown Whitebread, a city of 400,000 people and home of Whitebread State University (WSU). The WSU Athletic Foundation, which oversees and operates all athletic programs at WSU, is an active member of the Whitebread Club. Ever since its founding in 1921, the Whitebread Club has steadfastly refused to admit blacks and Jews as members, although such persons may visit the club as guests of regular members. It has been the longstanding practice of the WSU Foundation to purchase a membership at the Whitebread Club for all the head coaches of WSU’s many athletic programs. However, Chuck Tricky, the WSU athletic director, has been informed by the Board of Directors of the Whitebread Club that the Club will not grant membership to the new WSU head football coach, who is black. Upon learning that the new coach would not become a member at the Club, Tricky announced that the Athletic Foundation was "disappointed" but had "no intention of terminating its long-standing close affilation with the Whitebread Club." The new football coach, Harold Fiddlehook, has threatened to resign his position in protest over the incident. Is there a constitutional question here? If so, who would have standing to raise this question in federal court? Who would be named as respondent to the suit? How should the issue be resolved?

Tumbleweed County is 55% white, 38% Mexican-American, and 7% percent African-American. Until now, the nine county commissioners have been elected on an at-large basis. As a result, only two Mexican-Americans and no African-Americans have ever been elected to county commission. Reacting to political pressure and the threat of litigation, the county commission has approved a change in the county’s charter calling for the creation of single-member commission districts. Voters have overhelmingly approved this charter amendment in a county-wide referendum. The U.S. Department of Justice has precleared the charter change under the Voting Rights Act of 1965, as amended. Subsequently, the county commission has adopted an ordinance setting forth the boundaries of the new districts. Minority leaders have complained that the new boundaries have been gerrymandered to minimize the chances of minority candidates being elected to the commision. In the first commission election held under the new arrangement, no moinority candidates have been elected. Minority voters have now gone to federal court challenging the constitutionality of the redisticting plan. What are plaintiffs’ chances of prevailing in this litigation? What additional factual information would the trial court need the resolve this case? What constitutional issues would likely be raised in an appeal of the trial court’s judgment?