54 Unit 1 The Legal Environment

Practice Test
1. Michigan’s Solid Waste Management Act (SWMA) generally prohibited Michigan counties from
accepting for disposal solid waste that had been generated outside that county. Fort Gratiot operated a
sanitary landfill in St. Clair County, Michigan. The county denied Fort Gratiot permission to bring in
solid waste from out of state, and Fort Gratiot sued. This case involves the negative, or dormant, aspect
of the Commerce Clause. What is the difference between that aspect and the positive aspect? What is
the evil that the dormant aspect is designed to avoid? How would you rule in this case?
The positive aspect of the Commerce Clause grants Congress the power to regulate interstate
commerce. The negative, or dormant, aspect severely restricts the power of the states to do so: a state
statute that discriminates against interstate commerce is invariably unconstitutional. The dormant
aspect is designed to prevent the states from taxing goods and services produced in other states, and
thus turning the nation into 50 competing sovereigns. In this case, the United States District Court and
the Court of Appeals both found that Michigan’s statute did not violate the Commerce Clause, but the
Supreme Court reversed, finding a violation of the dormant aspect. There was no valid reason to limit
the amount of waste that a landfill operator could accept from outside the company (and thus from
outside the state) while placing no limit on locally created waste. Fort Gratiot Landfill, Inc. v.
Michigan Dept. of natural Resources, 504 U.S. 353 (1992).
3. Dairy farming in Massachusetts became more expensive than in other states. In order to help its dairy
farmers, the state began taxing all milk sales in the state, whether the milk was produced in state or out
of state. The money went into a fund that was then distributed among Massachusetts milk producers as
a subsidy for their milk. Discuss.
The milk tax violates the dormant, or negative, aspect of the Commerce Clause. West Lynn Creamery,
Inc. v. Healy, 114 S. Ct. 2205, 1994 U.S. LEXIS 4638 (1994). The Supreme Court found that this was
a tax on interstate commerce. Although the tax is applied on all milk sales, it is redistributed to local
producers. It is effectively a tax only on out-of-state producers, a major interference with interstate
commerce.
5. In the early 1970s, President Nixon became embroiled in the Watergate dispute. He was accused of
covering up a criminal break-in at the national headquarters of the Democratic Party. Nixon denied any
wrongdoing. A United States District Court judge ordered the president to produce tapes of
conversations held in his office. Nixon knew that complying with the order would produce damaging
evidence, probably destroying his presidency. He refused, claiming executive privilege. The case went
to the Supreme Court. Nixon strongly implied that even if the Supreme Court ordered him to produce
the tapes, he would refuse. What major constitutional issue did this raise?
The constitutional issue is judicial review. Since Marbury v. Madison, 5 U.S. 137 (1803), federal
courts have insisted that they have the power to review acts of the other two branches. The Supreme
Court ruled that while there was a limited executive privilege, it did not include the right to withhold
evidence in a criminal investigation. When the Supreme Court did in fact order Nixon to produce the
tapes, he hesitated . . . but obeyed. The tapes he produced destroyed his credibility and his political
base, and he became the first president to resign his office. But the principle of judicial review was
affirmed. Alternatively, students might note that, regardless of what power the president possesses
under the Constitution as Commander and Chief of the armed forces (and as circumscribed by the War
Powers Resolution), it is politically intelligent to obtain the public approval o Congress when sending
our citizens into armed conflict.
7. You begin work at Everhappy Corp. at the beginning of November. On your second day at work, you
wear a political button on your overcoat, supporting your choice for governor in the upcoming election.
Your boss glances at it and says, “Get that stupid thing out of this office or you’re history, chump.”
You protest that his statement (a) violates your constitutional rights and (b) uses a boring cliché. Are
you right?
55 Unit 1 The Legal Environment

Although wearing a button is expressive, i.e., speech, conduct, there is no constitutional violation. The
First Amendment pertains to government restrictions on speech. Therefore, the First Amendment
protects you only from the government, not from a private party such as a corporation.
9. A federal statute prohibits the broadcasting of lottery advertisements, except by stations that broadcast
in states permitting lotteries. The purpose of the statute is to support efforts of states that outlaw
lotteries. Edge Broadcasting operated a radio station in North Carolina (a nonlottery state) but
broadcast primarily in Virginia (a lottery state). Edge wanted to advertise Virginia’s lottery but was
barred by the statute. Did the federal statute violate Edge’s constitutional rights?
The Supreme Court said that it did not. United States v. Edge Broadcasting, 509 U.S. 418 (1993).
This is commercial speech and receives a lower level of protection than other speech. In order for a
restriction to survive a First Amendment test, it need only “be tailored in a reasonable manner to serve
a substantial state interest” (Edenfield v. Fane, quoted in text). Here, the purpose of giving support to
states that oppose lotteries is a substantial one, and this restriction reasonably serves that purpose.
11. David Lucas paid $975,000 for two residential lots on the Isle of Palms near Charleston, South
Carolina. He intended to build houses on them. Two years later the South Carolina legislature passed a
statute that prohibited building seaward of a certain line, and Lucas’s property fell in the prohibited
zone. Lucas claimed that his land was now useless and that South Carolina owed him its value. Explain
his claim. Should he win?
His claim is based on the Takings Clause of the Fifth Amendment. The Supreme Court was unable to
make a final ruling because certain facts were unclear from the record. Nonetheless, the Court stated
that when the owner of real property has been called upon to sacrifice all economically beneficial uses
in the name of the common good, he has suffered a taking and is entitled to compensation. It appears
very likely that Lucas's property has lost all beneficial uses. If South Carolina can demonstrate some
unexpected common law right to prohibit Lucas from building, such as nuisance, it may prevail. In all
likelihood, though, South Carolina will end up paying “just compensation” for Lucas's land. Lucas v.
South Carolina Coastal Council, 505 U.S. 1003 (1992).