Constitution

Question 1

Type of Justiciability

Answer 1

1. Standing
2. Mooting
3. Ripeness
4. Collusive suits
5. Political question

Question 2

When It is Issue of Justiciability

Not Rule

Answer 2

• whether particular plaintiffs can sue,
• whether the court can hear a particular case,
• sometimes when a plaintiff seeks to vindicate their constitutional rights or the constitutional rights of others
• the call explicitly asks you to discuss a justiciability issue.
• where parties seek a declaratory judgment,
• alleging the government conduct is unconstitutional,
• plaintiffs must show they have a substantial controversy with the government—in essence, does the plaintiff have standing.
• where constitutional rights are asserted as a defense in a civil case or a military court martial case

Question 3

Declaratory Judgment

Answer 3

Plaintiffs must show they have a substantial controversy with the government – in essence, does the plaintiff have standing

Question 4

Ripeness

Answer 4

Plaintiff asserts there is an immediate or imminent threat of harm (e.g., the threat of prosecution if the plaintiff sells a particular publication without government approval). A federal court will not hear a case unless plaintiff has been harmed, or there is an immediate or imminent threat of harm.

Ripeness thus requires the imminent threat of possible prosecution or harm. If there is already actual harm, the case is clearly ripe and there is no issue to discuss other than perhaps standing.

Question 5

Mootness

Answer 5

The court will not hear the case because it is moot when the requested relief has been obtained, or it is no longer a realistic solution.

But, where a party likely will be subjected to the same action and again could not resolve the matter due to the short duration of the situation, the controversy is “capable of repetition and yet evading review,” and will be heard.

Controversy is capable of repetition and yet evading review (pregnancy, elections, divorce)

Question 6

Type of Standing

Answer 6

1. Individual
2. Third party
3. Organizational

Question 7

Individual Standing**

Answer 7

A plaintiff must have standing to challenge a federal law in a federal court. Standing requires the plaintiff to show a particularized injury, causation, and redressability.
–

An individual plaintiff must show three components:

(1) a specific injury, greater and different from the injury all persons suffer because the government is engaged in unconstitutional action;
(2) a causal connection between the injury and the defendant’s action complained of; and
(3) a ruling favorable to plaintiff would eliminate the harm to the plaintiff.

Question 8

Specific Injury

subrule in Individual standing

Answer 8

The plaintiff must show a particularized injury that is specific to the plaintiff.
—

Usually, injuries in fact involve a violation of a common law right (especially a monetary harm), a constitutional right, or a statutory right.

Question 9

Causation

Answer 9

The plaintiff must show that the defendants conduct is causing the injury.

Question 10

Redressability

Answer 10

The plaintiff must show that a favorable result will redress the injury.

Question 11

Third-Party Standing

Answer 11

A plaintiff may assert the constitutional rights of others only if (1) the plaintiff has personally suffered injury; and either (2) third parties find it difficult to assert their own rights or (3) plaintiff’s injury adversely affects plaintiff’s relationship with third parties.

Question 12

Organizational Standing**

use this rule to create overall organization of the analysis

Answer 12

An organization has standing to challenge action that injures its members if: (1) the injury in fact to members is sufficient to give individual members standing; (2) the injury is related to the organization’s purpose; and (3) individual members in lawsuit do not required participation because of the nature of the claim or the relief

Question 13

Individual Injury of Members

Subrule - organizational standing

same as individual standing

Answer 13

To show individual members have standing, the organization must show:
1. a specific injury to the members, greater and different from the injury all persons suffer because the government is engaged in unconstitutional action;
2. a causal connection between the injury and the defendant’s conduct complained of; and
3. a ruling favorable to plaintiff would eliminate the harm to plaintiff.

Question 14

11th Amendment

Answer 14

11th amendment generally bars suits against states in federal courts.

The only time the Eleventh Amendment applies is with a lawsuit against a state government or a state government officer.

However, if plaintiff claims remedy for equal protection / due process violations under 14th amendment – Section 5 of the 14th amendment overrides the Eleventh Amendment and permits a lawsuit against the state or state officers for damages. Thus, Plaintiff in such cases can seek damages against state or state employees

Only consider this issue if the lawsuit is brought in Federal Court against a state government or state officer.

Question 15

Cases that 11th Amendment Bars

Answer 15

The following cases are barred by the 11th amendment if brought in federal court:
a) Actions against state governments for damages
b) Actions against state governments for injunctive or declaratory relief where the state is named as a party
c) Actions against state government officers where the effect of the suit is that retroactive damages will be paid from the state treasury or where state land would be taken away
d) Actions against state government officers for violating state law
e) Actions contesting immunity of sister state under that state’s law

Question 16

Congressional Power

Answer 16

Congressonal power is specifically enumerated in the Constitution.
—
Article I, Section 8 of the Constitution specifically enumerates powers of the Congress.

Question 17

Issue for Congressional Power

not rule

Answer 17

Issue is rise:
1. if you are given a statute passed by Congress and
2. you need to determine whether Congress has constitutional power to enact the statute.

Question 18

List of Congressional Power

not rule

Answer 18

1. Commerce clause
2. Dormant Commerce Clause
3. Spending Clause
4. Taxing Power

Question 19

Commerce Clause

Barbri+ST rule

Answer 19

Congress has plenary power over interstate commerce (commerce among the states, with foreign nations and Native American tribes). Commerce Clause grants Congress power to regulate: 1) the channels of interstate commerce; 2) the instrumentalities of interstate commerce; and, 3) commercial activities that have a substantial economic effect on interstate commerce.

–
Congress has plenary power over interstate commerce (commerce among the states, with foreign nations, and with Native American tribes).

interstate commerce is:
1. channels of interstate commerce
2. instrumentalities in the interstate commerce
3. activities that have substantial economic effect in interstate commerce

Question 20

Interstate Commerce

Answer 20

Interstate Commerce is:
1. Channels (roads, waterways, etc.)
a) whether the federal law regulates the channels of interstate commerce, such as the roads, rivers, and highways
2. Instrumentalities (trucks, buses, planes, trains, etc.)
a) whether the federal law regulates the instrumentalities of interstate commerce, such as trucks, boats, trains, cars, telephone and telegraph wires, and the internet
3. Substantial Economic Effect on interstate commerce
a) whether the regulated activities have a substantial economic effect on interstate commerce.

Question 21

Substantial Economic Effect - economic activity

subrule - Interestate Commerce

Answer 21

The regulated activity must be economic in nature. The regulated economic activity may be local if, in the aggregate, it would have a substantial economic effect on interstate commerce or on movement in interstate commerce, alone or in combination with other activites. Congress has a rational basis to regulate an activity based on substantial economic effect of the activity.

Question 22

Substantial Economic Effect - noneconomic activity and inactivity

Answer 22

If activity is non-economic and has historically been state regulated, then the Court will strike down the regulation or statute as not within the Congress’ enumerated Commerce power.

Inactivity cannot be regulated under Commerce Clause.

Question 23

10th Amendment Limits on Commerce Clause

Answer 23

[Even if law is supported by Commerce Clause,] the federal law is barred by the Tenth Amendment because the federal statute seeks to regulate state government activities or officials through coercion or commandeering.
The 10th Amendment prohibits Congress from requiring states to act in a certain way, or coercing states to act in a certain way by over-penalizing them for refusing to do so.

Question 24

Coercion

Answer 24

Coercion is when federal government requires states to act in certain way or else impose substantial penalty for failing to act.

In New York v. U.S., the Court struck down a requirement that states had to either regulate radioactive waste or take title to it.

Question 25

Commandeering

Answer 25

Commandeering is when Congress requires state officials to act in aid of federal law without funding the activities.
–
the 10th Amendment prohibits Congress from commandeering state officials by requiring state officials to act in aid of federal law without funding the activities.

Question 26

Spending Clause

Answer 26

Spending power is plenary, so long as it is for the general welfare. [But Congress cannot coerce state governments to do something by cutting off a significant amount of the funding unless Congerss is funding an entire program through the states.]

Congress may place a condition on states in exchange for federal funds if:
* The condition is unambiguous;
* The condition is related to the federal program (relatedness);
* The state is not required to undertake unconstitutional action; and
* The amount in question is not so much that the state is “coerced” into accepting the funds.

Condition v. penalty:
1. In South Dakota v. Dole, penalizing states that did not adopt the 55-mph speed limit by cutting off only 5% of the federal highway funds was not a significant enough cut to constitute coercion.
2. Still, if Congress is funding an entire program through the states, it can regulate the use of all the funds and condition the funds on certain requirements.

Question 27

Taxing Power

Answer 27

Congress has plenary power to tax. The elements are:
1. Tax is valid if reasonably related to raising revenue or Congress can regulated the taxed activity; and
2. Tax should have geographical uniformity (the tax is imposed the same way wherever it is imposed)

Case law - In the Affordable Care Act case, the Court found that the penalty on individuals who do not obtain health insurance is a tax, designed to raise revenue to help fund the administration of health care under the Act. Thus, the Court held that it was a proper tax, and the individual mandate was upheld on that basis.

Question 28

Dormant Commerce Clause and P&I of Art. 4th

not rule

Answer 28

A. These clauses are triggered by any kind of state or local economic regulation—state statutes or local ordinances
B. if the essay concerns state or local economic regulation (as opposed to federal regulation) that affects or impairs out-of-state business.

Question 29

Dormant Commerce Clause

Answer 29

The Dormant Commerce Clause bars states from unduly burdening interstate commerce, which is the subject to Congress’ plenary regulation. A state or local law violates the Dormant Commerce Clause if it either: (1) discriminates against out of state competition to benefit local economic interests; or (2) is unduly burdensome on interstate commerce. A law is unduly burdensome if the legitimate local benefits do not outweigh an incidental burden on interstate commerce.
—
not stated rule
1. There are two parts to the test for whether a state or local law or regulation impermissibly burdens interstate commerce and thus violates the dormant commerce clause. A law violates the dormant commerce clause if it either:
a) discriminates against the out-of-state competition to benefit local economic interests
(1) please explain how those local interests are benefited, or
b) is unduly burdensome in that the legitimate local benefits do not outweigh the burden on interstate commerce.

Question 30

legitimate local benefits under Unduly burdensome

Subrule #2

Answer 30

For unduly burdensome test, “legitimate” local benefits cannot include benefiting local commerce to the detriment of out-of-state commerce.

Question 31

DCC Exception

Answer 31

There are four exceptions for DCC:
1. Furthering of Important State’s Noneconomic Interest
2. Traditional State Functions
3. Market Participant
4. Congressional exemption

Question 32

Furthering of Important State Interest

Answer 32

A discriminatory state or local law may be upheld if it furthers an important non-economic state interest (such as health or safety), and there are no reasonable nondiscriminatory alternatives.

Question 33

Traditional State Functions

Answer 33

A regulation that prefers government in its exercise of a traditional public function is permitted. Thus, for example, state law can require waste haulers to use a state facility over a private facility.

Question 34

Market Participant

Answer 34

If the state or local body is a market participant, it may prefer its own citizens in its conduct of the business. However, the State’s conduct as a market participant cannot create external, downstream effects. Often, this offending conduct has amounted to hoarding local resources for the benefit of local businesses that treat them.

—
Note: directing market by regulation is not market participant; buying/selling is market participant

Question 35

Privileges and Immunities of Article IV

Answer 35

This clause prohibits states from discriminating against noncitizens of that state as to fundamental rights, which is limited to the civil liberties, such as 1st, 2nd, 4th, 5th and 6th amendments, and commercial activities, such as the right to earn a living. Corporations and aliens are not protected. The law that discriminates against nonresident in exercise of their fundamental rights may only be valid if the state has substantial justification for the different treatment.
—
This clause prohibits discrimination by a state against noncitizens of that state as to fundamental rights. In this clause, “Fundamental rights” are limited to civil liberties, such as those in the First, Second, Fourth, Fifth and Sixth Amendments, and commercial activities, such as the right to earn a living. Corporations and aliens are not protected. A state law discriminating against nonresidents in the exercise of fundamental rights may only be valid if the state has a substantial justification for the different treatment.

Question 36

What P&I of 4th Art Applies

subrule

Answer 36

a) Corporations and aliens are not protected.
b) If a business entity is not a corporation, but a sole proprietorship or partnership operated by persons, apply the Article IV Privileges and Immunities test
c) individuals

Question 37

4th Art P&I Exception

Answer 37

A state law discriminating against nonresidents in the exercise of these fundamental rights may only be valid if the state has a substantial justification for the different treatment. State must show that the non-residents either cause or are part of the problem being solved, and there are no less restrictive means to solve the problem.

Question 38

4th P&I

approach

Answer 38

a) Discuss whether the state violates fundamental rights
b) Then discuss whether or not there was a substantial justification.

Question 39

Delegation Power

Answer 39

Congress may delegate its authority to administrative or executive officers with articulable and intelligible principle for the delegate to follow. Congress may delegate any enumerated powers except powers that is uniquely confined to Congress.
—
Congress may delegate authority to adminstrative agencies, or to executive officers.

—
1. Does Congress have the authority to regulate the subject of the legislation in the first place?
a) Applies to any enumerated power (see commerce clause and spending clause analysis)
(1) Usually this involves the Commerce Clause analysis, but any enumerated power, but Delegated power cannot be uniquely confined to Congress (i.e., impeachment)
(2) E.g., Congress can delegate the issuance of contracts regarding interstate commerce to an agency, but Congress cannot delegate its impeachment power.

b) Requires intelligible (articulable) standards for the delegate to follow

2. Does the agency regulation conform to Congress’ legislation?
   a) determine whether the regulation issued by the administrative agency conforms to, and is consistent with, Congress’ legislation.
   b) Regulations that exceed the Congressional grant of authority are not permitted.

Question 40

Delegated Power is Valid

Subrule - Delegation

Answer 40

Congress has the power to delegate its power except those powers that are uniquely confined to Congress.

Question 41

Intelligble principle

Subrule - Delegation

Answer 41

A delegation will be upheld only if it includes intelligible standards, and delegations of extraordinarily broad authority require particularly clear congressional authorization.

Question 42

13th Amendment

Answer 42

This Amendment authorizes Congress to pass laws to prohibit slavery, the badges of slavery, and involuntary servitude and authorizes to remedy private racial discrimination.

Can v. can’t do:
1. Congress may enact laws banning racial discrimination in private and public commercial activities and transaction such as housing sales and other commercial activities
2. Has not been held to apply to non-racial discrimination.
3. Has not been held to either act as a bar to, or authorize to other forms of “involuntary servitude” such as the draft or mandatory national service or prison.

Question 43

Contract Clause

Answer 43

Generally, a state or local government may not substantially impair the obligations under private contracts [i.e., make it impossible to perform the contract] unless it is a reasonably and narrowly tailored to serve a legitimate and important state interest.

—
Law may not substantially impair the obligation under private contracts, unless:
1. Law serves a legitimate and important state interest and
2. Law is reasonable and narrowly tailored to promote that interest.

Question 44

Govt Impairs Public Contracts - Standard

subrule: Contract Clause

Answer 44

When government entity that ultimately impairs its own contract with private party, court uses stricter view.

But if either the authorizing statute or the contract itself reserves the right of the state or local government to amend, revoke or modify the contract, there is no substantial impairment, and a state cannot be obligated to refrain from exercising its police power.

Question 45

Legislative Veto

Answer 45

A legislative veto is an attempt by Congress to overturn an executive agency action without bicamerlism and presentment.
—
1. Bicamerlism (approval by both houses) or
2. Presentment (giving a bill to the President for signature or veto)

Question 46

Line Item Veto

Answer 46

Action by President to “veto” appropriation after signing the legislation (line item veto) or to impound congressionally appropriated funds
—
Usually, this arises when Congress delegates discretionary authority to the President or an executive agency, so the delegation issue arises as well, and then tries to control the discretion by requiring the agency to present the action to Congress for final approval so that, if Congress vetoes it, the action does not go through.

This is unconstitutional because Congress’ veto is itself a form of legislative action, which needs to be authorized by both houses (bicameralism), and then presented back to the President for signature or veto (presentment).

The same issue arises if the President seeks to cancel a federal law or impound an appropriation of funds after the legislation has been signed.

Case Law: In New York v. Clinton, legislation that allowed the president to cancel an item of appropriation (the line item veto) was found unconstitutional since the President’s only authority over legislation is the veto power.

Question 47

Supremacy Clause

Answer 47

The Supremacy Clause makes federal law the supreme law of the land. Under the Supremacy Clause, state or local laws that expressly or impliedly conflicts by a valid federal law, regulation, or executive order will be preempted.
Express preemption occurs when the federal statute expressly states it preempts state/local law. There are three types of implied preemption: (1) If the federal law and state law actually conflict; (2) If a state law interferes with accomplishing a valid federal objective; or (3) If it appears that Congress intended to occupy the entire field of regulation in that (a) it is significantly comprehensive in scope and (b) it creates an agency to administer the field.

—
A Supremacy Clause renders any state law in conflict with the federal law as void. A valid act of Congress or federal regulation or Presidential Executive Order supersede any state or local action that actually conflicts with it.

When governmental power belongs both to the federal government and the state, the Supremacy Clause renders any state law in conflict with the federal law as void. A valid act of Congress or federal regulation (or Presidential Executive Order) supersedes any state or local action that actually conflicts with it.

Question 48

Type of Preemption

list

Answer 48

1. Express - statute expressly states it preempts state/local law
2. implied
   * actual conflict
   * state/local law interferes with valid fed objective
   * fed law shows intent to occupy the field

Question 49

Implied Preemption

Answer 49

There are three types of implied preemption: (1) If the federal law and state law actually conflict; (2) If a state law interferes with accomplishing a valid federal objective; or (3) If it appears that Congress intended to occupy the entire field of regulation in that (a) it is significantly comprehensive in scope and (b) it creates an agency to administer to field.

Question 50

State Police Power

Field preemption subrule

Answer 50

In the fields traditionally within the power of the states – e.g., health, safety, and welfare – there is a presumption that preemption was not intended unless preemption was the clear and manifest purpose of Congress in creating that federal law.
—
In fields traditionally within the power of the states—such as health, safety, and welfare—there is a presumption that preemption was not intended unless preemption was the clear and manifest purpose of Congress.

Question 51

Presidential Authority

Answer 51

The Executive Power (to take care that the laws be faithfully executed) is vested in the President and such other executive branch officers to whom those powers are delegated.
—
Presidential Power is analyzed based on whether the exercise of power is in
1. Domestic affairs,
2. As commander in chief of the military, or
3. Foreign affairs

Question 52

Domestic Affairs

Answer 52

To determine whether President’s actions in domestic affairs are valid, use Youngstown:
1. When the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions are valid;
2. When the President acts where Congress is silent, the President can act if he does not encroach (take over power) upon another branch or prevent another branch from carrying out its tasks;
3. When the President acts against the express will of Congress, his actions are invalid.
–

Shorthand Youngstown Sheet & Tube v. Sawyer guide
1. Express/implied authority of Congress - Acts valid
2. Congress is silent – Acts valid if no violation of other provisions of Constitution
3. Congress declines to authorize – Acts invalid

Question 53

Commander in Chief and Foreign Power

Answer 53

As commander in chief, the President may act militarily without a Congressional declaration of war, but the limitations and requirements of notice to Congress and congressional authority to cut off funds under the War Powers Act have not been constitutionally tested. The President’s authority in foreign affairs is paramount.
—
Just be sure to distinguish between actual foreign affairs and military matters, as opposed to acts involving domestic affairs taken during times of conflict or war or interference with appropriation of foreign aid approved by Congress.

Question 54

Appointment

Answer 54

It is within the President’s power to appoint ambassadors, judges, and US officers with the advice and consent of the Senate, but Congress may [according to Article II, Section 2] vest the appointment of officers other than ambassadors, Cabinet heads, public ministers, and judges in the President alone, his Cabinet officers, or in the courts.

Question 55

Court Appoint Independent Counsel

subrule

Answer 55

Under Morrison v. Olson, Congress vest appointment power to the courts to appoint an independent counsel or special prosecutor.

Question 56

Appoint Principal officers and Inferior Officers

subrule

Answer 56

The President has the authority to appoint:
1. Principal officers (Cabinet members)
2. Inferior officers (sub-Cabinet members)

Congress cannot appoint officers of the executive branch (agencies and commissions) or give the President a list of acceptable appointees

Question 57

Removal Power

Kaplan

Answer 57

• Executive officials: The President may remove any executive appointee without cause (i.e., an ambassador or cabinet member).
• Executive officials having fixed terms: The President must have cause to remove executive officers who have fixed terms.
• Offiers with judicial or quasi-judicial functions. The President must have cause to remove officers who perform judicial or quasi-judicial functions (e.g., a member of the Federal Trade Commission).
• Federal judges: The President cannot remove judges, even for cause. The only way a federal judge may be removed is by impeachment.
• Congressional approval/removal: Congress cannot require the President to get congressional approval before removing someone; Congress cannot remove an official itself.

Question 58

Takings - 5th amendment

Answer 58

The Fifth Amendment prohibits governmental taking of private property for public use without just compensation. [Just compensation is the fair market value at the time of the taking – not a future value.]
The only exception for takings is an emergency - there compensation is not required.

—
The Bar essays will only test whether an act of the government constitutes a taking, not whether the compensation is adequate.

Question 59

Two Ways to Describe Takings

Answer 59

1. Total taking v. partial taking
2. Physical taking v. regulatory taking

Question 60

Actual Appropriation

is it taking

Answer 60

The actual appropriation, occupation, or physical taking of property is almost always a taking.
—
e.g.,
1. requiring landlords to allow cable TV installation but limiting the fee to $1;
2. statutes abolishing the right of descent; and
3. the requirement that the public be given free access to a private waterway.

Question 61

Physical Takings

Answer 61

Physical appropriation/destruction:
a) Total physical taking: if all of owner’s property is physically appropriated
b) Partial physical taking: if less than all of an owner’s property is physically appropriated
—
Note: there can almost never be a total taking if the remainder of the land has a viable economic use.

Question 62

Regulatory Takings

Answer 62

There are four major type kinds of regulatory takings (restriction use takings):
1. Total Taking
2. Use Restrictions (partial taking)
3. temporary moratoria
4. exactions

Question 63

Pro se total regulatory taking

Answer 63

If the government denies a landowner all economic use of the land, there is a per se total regulatory taking.

Question 64

Use Restrictions (partial taking)

Answer 64

Regulations that decrease the property value by denying its most beneficial use do not result in a partial taking if they leave an economically viable use. The Court balances the three Penn Central factors: (1) the social goals sought to be promoted; (2) the diminution in value to the owner; and (3) the owner’s reasonable investment-backed expectations regarding use of the property. Regulations commit partial takings only if the regulation unjustly or greatly reduces the value with only slight public benefit.
—-
3 Penn Central factors
a) Character of the government action (social goals promoted)
b) Economic impact on the property (diminution in value), and
c) Interference with investment backed reasonable expectations

Question 65

Temporary Moratoria (temporary partial taking)

Answer 65

Where there is a temporary moratorium on all economic use, the court will weigh the three Penn Central factors plus the length of the delay.
Length of delay plus Penn Central factors:
a) Planners’ good faith
b) The delay’s economic effect;
c) Owners’ reasonable investment-backed expectations

Question 66

Exactions - Unconstitutional Conditions –> Takings

nolan/dolan

Answer 66

Exaction is when municipalities condition the building or development permits on either the landowner’s conveying title to part or all of the property to the government, granting public access, or paying a monetary fee. Exaction is an unconstitutional condition unless the government shows that the condition relates to a legitimate government interest and the adverse impact of the proposed building or development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupancy rights.
—
e.g.,
* If the harm caused is the filling of one acre of wetlands, a requirement to dedicate two acres of wetlands may not be proportional to the harm.
* If the remediation is not at all related to harm caused, there is no proportionality.

Question 67

Zoning Ordinance as Taking

taking

Answer 67

Zoning ordinances can also implicate a taking. Government may adopt zoning ordinances, which regulate the kinds of uses permitted in different zones of a city or county, pursuant to the police power. Such ordinances are not a taking unless they: (1) physically appropriate property; (2) deny all economic use; or (3) unreasonably interfere with distinct, investment-backed expectations. Otherwise, reasonable zoning regulations are permitted for the protection of the health, safety, morals and welfare of the citizens.
—
May be a taking IF:
a) Ordinance physically appropriates property
b) Ordinance denies all economic use
c) Ordinance unreasonably interferes with distinct, investment-backed expectations

Question 68

Zoning Ordinance

tips

Answer 68

Answer is usually ZO is not taking
(1) If ZO completely banned development –> taking
(2) If ZO switched zoning –> its okay

1. The zoning power is based on the police power and is limited by the Due Process Clause.
2. A use that exists when the zoning ordinance is passed that does not conform cannot be eliminated at once—these non-conforming uses are permitted, and may be amortized over a reasonable period of time by grandfathering in existing uses.
3. Only when the property with the non-conforming use is conveyed to an independent third party (as opposed, for example, to a family trust or family member such as parent to child) can the zoning change be enforced.

Question 69

Non-Conforming Uses Permitted

Answer 69

Existing non-conforming uses permitted and amortized by grandfathering provisions.

A nonconforming use cannot be extended or modified to constitute a substantial change, but owners can make reasonable changes to repair the premises and make them practicable for their purposes.

Question 70

Variance

Answer 70

A variance from the zoning ordinance may be granted on a showing of unique hardship to the property owner and that the variance will not be contrary to the public welfare.

Zoning variance may be granted if:
a) Showing of unique hardship to the property owner, AND
b) Not contrary to the public welfare

Question 71

Due Process**

Answer 71

The Due Process Clause of the 14th amendment prohibits state and local government from depriving individuals of life, liberty, or property without due process of law.

The issue is whether the government deprive plaintiff of life, liberty, or property interest within the meaning of the 14th Amendment when government deprived P of her right.
—
The issue here is here is whether the government deprived [plaintiff] of a [life, liberty, or property] interest within the meaning of the 14th amendment when [the deprivation]

Question 72

14th amendment – state action**

Answer 72

The 14th Amendment bars state and local government deprivation of equal protection, procedural due process, and substantive due process rights, including those rights that apply to the states through incorporation under the 14th Amendment.

There are four major types of state action: (1) a law, ordinance, or regulation; (2) a government actor (such as an agency or government employee); (3) a private actor engaged in traditional exclusive public functions; and (4) a private action with significant state involvement.

—

14th amendment only applies to actions by state or local government that involve deprivation of 14th amendment:
1. Equal protection
2. Substantive due process for fundamental rights (1st, 2nd, 4th, 5th, 6th, and 8th amendments)

If the question involves alleged deprivation by a state or local government of equal protection, procedural due process, or substantive due process fundamental rights, **there must first be government, or state, action. **

You do NOT need to discuss state action if the challenged action is by the federal government, or by a state or local government that does not involve the deprivation of equal protection or due process, but instead is a violation of a specific other provision of the Constitution. Thus, a state’s violation of the Commerce Clause or Contracts Clause is not a 14th Amendment violation and so does not require a discussion of “state action.”

Question 73

14th amendment – state action

Tip

Answer 73

1. DO NOT DISCUSS IF ACTIONS ARE OF:
   a) Federal government or
   b) State or local government violations does not involve the deprivation of equal protection or due process, but instead is a violation of a specific other provision of the Constitution
   —
   Steps:
2. state action
3. Due process/EPC/Substantive Due process

Question 74

Four major types of state action

List

Answer 74

1. A law, ordinance, or regulation;
2. A government actor (such as an agency or government employee);
3. A private actor engaged in traditional exclusive public functions;
   a) E.g., sanitation, parks, prisons
4. A private action with significant state involvement, encouraging or facilitating the private action,
   a) E.g., court enforcement of restrictive covenants in Shelley v. Kraemer.
   b) Note it is fairly rare to test the private actor or action/state action issue on the essay exam.

Question 75

due process

approach

Answer 75

1. state action
2. due process
3. property, life or liberty
4. what process is due?

Question 76

Property

Due Process

Answer 76

Property includes personal belongings and realty, chattels, or money, intangible property, legitimate claim or entitlement such as development rights and a vested right to continued public emeployment absent good cause for termination.

Question 77

Deprivation

updated subrule

Answer 77

The deprivation must be intentional, not negligent, and a deprivation means that the government affords no remedy, or merely an inadequate remedy.

[pick relevant one]
* Deprivation of Life interest is issue of death penalty.
* Deprivation of liberty occurs when a person loses significant freedom of action, or is denied a freedom provided by the Constitution or by statute.
* Deprivation of property interest includes personal belongings and realty, chattels, money and intangible property. Moreover, it includes a legitimate claim or entitlement.

Question 78

deprivation

Tip

Answer 78

The deprivation must be intentional, not negligent, and a deprivation means that the government affords no remedy, or merely an inadequate remedy.
—
Applies ONLY when government acts to deprive and individual of life, liberty, or property.
a) Life – death penalty
b) Liberty – loss of freedom, e.g., also stigma
(1) Deprivation of liberty occurs when a person loses significant freedom of action (such as commitment to jail or a mental institution), or is denied a freedom provided by the Constitution or by statute, such as the freedom of speech.
c) Property – includes entitlements, development rights, and continued right to public employment by a tenured employee except for cause
(1) Property includes personal belongings and realty, chattels, or money and intangible property, but it also includes a legitimate claim or entitlement, including perhaps development rights and a vested right to continued public employment where tenured absent good cause for termination

Question 79

Procedural Due Process**

Answer 79

• Procedural due process is a fair process or procedure, which generally means notice and an opportunity to be heard by a neutral decision maker.
• Procedural due process also bars imposition of a punishment that is disproportionate to the crime.
• There is only a right to procedural due process when the government acts to deprive an individual (as opposed to a group or everyone generally) of life, liberty, or property. Thus, passage of a law, which affects the general public, does not present a procedural due process issue.

only state what is relevant

Question 80

Fair Procedures

subrule

Answer 80

The hearing must have fair procedures and an unbiased decision maker. The three-part balancing test for fairness of the type of process [under Mathews v. Eldridge] are: (1) the importance of the individual liberty or property interest involved which has been allegedly deprived; (2) the value of specific procedural safeguards to protecting that interest—including the proportionality of the punishment to the offense; and (3) the countervailing governmental interest in fiscal and administrative efficiency.
—
Matthews v. Eldridge three-part balancing test
a) Importance of individual interest deprived,
b) Risk of erroneous deprivation/value of procedural safeguards (including proportionality of punishment to offense),
c) Importance of government interest

Question 81

equal protection

approach

Answer 81

1. state action
2. equal protection
3. intent to discriminate
   * facial discrimination <– common in bar
   * discrminatiory purpose
   * law is being discrimintorily applied
   note: Discriminatory application and purpose need additional facts showing that they exist. Discriminatory effect is not enough
4. classification - type of scrunity
   * rational basis
   * intermediate scrunity
   * strict scrunity

Question 82

Equal Protection

Answer 82

While the Fourteenth/Fifth Amendment bars discrimiantion, the analysis used depends on whether there was an intent to discriminate based on the type of classification used by the state actor.
—
Guaranteed by the 14th amendment against the states and local governments and by the 5th amendment due process clause against the federal government.
—
Roadmap
1. Does the government intend to discriminate?
2. In discussing the intent to discriminate, characterize and classify the groups being treated differently
3. Depending on the classification, state the appropriate test, including who has the burden.

Question 83

Govt Intent to Discriminate

Answer 83

Govt intend to discriminate
a) There are three kinds of intent—
(1) facial discrimination - law says to discriminate it.
(2) a discriminatory purpose - legislative implied it so though not stated; and,
(3) the law is being discriminatorily applied - [necessary to/substantially related to/rationally related to] achieving the government purpose?
a) Explain your conclusion with common sense
b) Explain this nexus factually.
c) Always note who has the burden

Note: Discriminatory application and discriminatory purpose need additional facts showing that they exist. Discriminatory effect is not enough.

Question 84

Class/Groups under EP and standard of review

note

Answer 84

Class/Group:
a) Is it by race, or gender, or residency, or something else?
b) There may be more than one classification—discuss each.

Appropriate Test:
1. strict scrunity - Race / National Origin / Alienage / Fundamental Liberty
2. intermediate scrunity - Gender / Illegitimacy
3. rational basis - All others

Question 85

Strict Scrutiny

EP

Answer 85

Where the classification used to discriminate is suspect class – race, national origin, alienage – or involves the exercise of the fundamental rights, the proper analysis is strict scrutiny. Under this test, the government has a burden to prove the law is necessary to achieve compelling government interest. The term “necessary” generally means there is no less restrictive alternative or that the law is narrowly tailored, which means it is not overinclusive or underinclusive.
—
(1) when a suspect classification (race, national origin, and alienage if a state law is involved) or fundamental liberty is involved
(2) the government has the burden of proving that the law is necessary to achieve a compelling state interest
(a) The term “necessary” generally means there is no less restrictive alternative, or that the law is narrowly tailored, which means it neither covers more people or conduct than is necessary to achieve its purpose (overinclusiveness) or less people or conduct than is necessary to achieve its purpose (underinclusiveness).

Question 86

Intermediate Scrutiny

Answer 86

Where the classification used to discriminate is based on gender or legitmacy, the proper analysis is intermediate scrutiny. Under this test, the government has the burden to prove that the law is substantially related to achieve an important state interest. This requires a close fit between means and ends.
—
(1) a classification is based on gender or legitimacy
(2) For a classification to withstand intermediate scrutiny, the government has the burden of proving that the law is substantially related to achieve an important state interest. This requires a close fit between means and ends.

Question 87

Rational basis test

Answer 87

Where the classification used to discriminate is not the suspect class, gender, or legitimacy, and does not involve the exercise of a fundamental right, the proper analysis is rational basis. Under this test, the Challenger has the burden to prove that the law is not rationally related to a legitimate governmental interest. Even if a law is unwise, or underinclusive or overinclusive, the Court will defer to the legislative body in its judgment—unless the purpose is to target unpopular groups or if the basis of the purpose is some form of animus toward a group.
—
(1) classifications other than suspect ones, gender or legitimacy, and non-fundamental liberty interests
(2) the challenger has the burden of proving that the law is not rationally related to a legitimate state interest. Even if a law is unwise, or underinclusive or overinclusive, the Court will defer to the legislative body in its judgment—unless the purpose is to target unpopular groups or if the basis of the purpose is some form of animus toward a group.

Question 88

substantive due process

approach

Answer 88

1. due process
2. 14th amendment - state action
3. Liberty interest
   * fundamental right or not
4. test
   * strict scrutiny - fundamental
   * rational basis - non-fundamental

Question 89

Substantive Due Process

Answer 89

Substantive due process involves government infringement of liberty interests. If the infringed liberty interest is fundamental, the proper test is strict scrutiny. Otherwise, it is rational basis.

Question 90

Fundamental rights

subrule

Answer 90

Rights or liberty interests are fundamental when it is rooted in a long, historical or moral tradition.

Question 91

rights or liberty interests are fundamental

list

Answer 91

1. Marriage
2. Travel
3. privacy
4. voting
5. family rights of association
6. the right of traditional families, but not non-traditional families, to live together
7. parents’ right to raise children
8. first amendment (except if the purpose of a state is not to target free exercise, but only incidentally inhibits it)

note: use strict scrutiny

Question 92

non-fundamental rights

list

Answer 92

1. consensual, private, adult sexual conduct
2. business regulation
3. taxation
4. lifestyle, and
5. zoning,
6. the liberty interest

note: use rational basis

Question 93

Abortion

MBE

Answer 93

Within the trimester framework, does the government regulation of some aspect of abortion constitute an undue burden on a woman’s right to choose whether to carry the child to term?

Question 94

1st amendment

approach

Answer 94

1. first consider how government is acting with regard to speech and
2. then, within the appropriate framework, consider how that act is taking place.

Analysis depends on:
1. Type of speech OR
2. Government role in regulating speech

Question 95

5 types of government roles

Answer 95

1. For protected speech, is the government acting as a regulator, banning certain types of speech?
2. Is the government regulating conduct?
3. Is the government regulating speech in prisons?
4. Is the government funding or not funding speech?
5. Is the government acting as property owner, regulating speech or conduct based on location?

Question 96

Note on 1st Amendment

Answer 96

1. The First Amendment generally bars the government from banning the communication of specific ideas.
2. The First Amendment generally bars the government from Burdening communication about a topic
3. Content-based – e.g., no talking about politics
4. Viewpoint-based – e.g. allowed to talk about politics but only for pro-Ron DeSantis
5. 1st amendment claims includes govt regulate speech, conduct, funding kinds of speech and as property owner regulating the conduct

Question 97

1st amendment rule**

organization for regulating speech

Answer 97

1. government action
2. content or conductA. Content
   i) Content-based ==> scrutiny test
   ii) Content-neutral ==> Conduct ==> TPMB. Conduct –> TPM
3. if TPM
   A. type of forum
   B. forum –> test
4. if business –> commercial speech

Question 98

First amendment speech

General rule - Barbri

Answer 98

The First amendment guarantees the freedom of speech.

Question 99

Content Regulation - ban or regulation based on content**

rule/approach

Answer 99

Heading: Is this regulation content neutral?

A regulation is content neutral if it regulates speech regardless of the message or viewpoint.

If regulation is content based—it forbids, punishes, or burdens communication at all about a subject but not other subjects —the government has the burden of showing that its law is necessary to achieve a compelling state interest.
—
rule: Is this regulation content neutral? A regulation is content neutral if it regulates speech regardless of teh message or viewpoint.
—
Subject to strict scrunity
Government has the burden of showing the regulation is NECESSARY to achieve a COMPELLING GOVERNMENT INTEREST. The term “necessary” generally means there is no less restrictive alternative, or that the law is narrowly tailored, which means it neither covers more people or conduct than is necessary to achieve its purpose (overinclusiveness) or less people or conduct than is necessary to achieve its purpose (underinclusiveness).

Question 100

Content Regulation: Government ban based on content**

Answer 100

Where a regulation is not content neutral, the govenrment has the burden of showing that its law is necessary to achieve a compelling state interest.
—
If regulation of speech is content-based—it forbids, punishes, or burdens communication at all about a subject—the government has the burden of showing that its law is necessary to achieve a compelling state interest.

Question 101

vagueness

Answer 101

A statute is vague if it is unclear what conduct or speech is prohibited, [so that persons potentially under the statute’s ambit are uncertain as to what conduct is prohibited.]

Question 102

Overbreadth

Answer 102

A statute is overbroad if more speech than is targeted is made unlawful.
—
Thus, does the ordinance/law burden any speech that government did not intend to target?

Question 103

Conduct - Symbolic Speech

Answer 103

The freedom of speech includes the right to engage in symbolic conduct. The regulation of conduct is upheld if: (1) the regulation is within the constitutional power (such as police power) of the government; (2) it furthers an important government interest; (3) the government interest is unrelated to the suppression of speech; and (4) the incidental burden on speech is no greater than necessary.
—
Regulation of conduct is upheld if:
1. The regulation is within the constitutional powers (such as police power) of the government,
2. It furthers an important government interest,
3. The government interest is unrelated to the suppression of speech, and
4. The incidental burden on speech is no greater than necessary

Note: If government is property owner, then use regulating time, place or manner of speech analysis, not content

e.g., person burning money to protest against govt using paper money
- Govt passed ordinance to stop and control fire in public park  within state’s police power
- Ordinance furthers an important govt interest – controlling fire to prevent harm to citizens
- Ordinance regulates conduct but nothing particular to speech
- And it is not overly broad - P can burn money somewhere else

Question 104

Content Neutral Speech

not stated rule

Answer 104

[note that definition is with content-based/content netural first rule]. If the regulation is Content neutral, the regulation is subjected to intermediate scrutiny. The regulation will be upheld if the government shows that it advances the important government interests unrelated to the suppression of speech and does not substantially burden more than it is necessary to further those interests.
—
If the speech regulation is content neutral—the speech is regulated no matter its content—then it is subject to intermediate scrutiny. The regulation will be upheld if the government shows that: (1) it advances important government interests unrelated to the suppression of speech, and (2) does not burden substantially more speech than is necessary to further those interests.
—
C. Regulation will be upheld if the government shows that:
1. It advances important issues unrelated to the suppression of speech, and
2. Does not burden substantially more speech than is necessary to further those interests

Note: Usually discuss under TPM regulations

Question 105

regulation speech that’s Content neutral

subrule

Answer 105

Whenever the speech regulation is content-neutral, consider the time, place and manner analysis.
—
Content-neutral: banning all speech within a certain area, or noise regulations, or something similar

bad rule

Question 106

First Amendment Rule - speech on government property**

Leads to TPM

Answer 106

The First Amendment generally bars the government from banning the communication of specific ideas. When the speech take place on government-owned property, the two issue are whether the property is a forum open to speech activity, and whether the speech regulation is a reasonable time, place or manner restriction.

Question 107

Time, Place and Manner Restriction -
Forum Analysis

Answer 107

The extent to which government may regulate speech-related conduct based on the time, place, or manner of the speech depends on whether the location is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Question 108

TPM: conduct
Forum

General rule - Barbri

Answer 108

The government may regulate the conduct of speech – the time, place, and manner (TPM) in which speech may take place.

Question 109

Type of location

list

Answer 109

1. public forum
2. designated public forum
3. limited public forum
4. nonpublic forum

Question 110

Public forum

Answer 110

A public forum is one that has been historically open to speech-related activities such as sidewalks, street corners, streets, and public parks.

e.g., sidewalks, street corners and streets, and public parks.

Question 111

Designated public forum

Answer 111

A designated public forum is one that has not been historically open to speech-related activities, but that the government has opened to such activities on a permanent or limited basis (such as schoolrooms opened in the evenings for public meetings or recreation or social uses).

schoolrooms opened in the evenings for public meetings or recreation or social uses

Question 112

Limited Public Forum

Answer 112

A limited public forum includes all other public property other than a nonpublic forum, including courtrooms.

e.g., courtrooms

Question 113

Nonpublic Forum

Answer 113

A nonpublic forum includes places such as jails and government buildings.

Question 114

Forum Analysis - TPM
Public forum & Designated public forum**

Answer 114

The government may regulate speech in a public forum and a designated public forum with reasonable time, place and manner restrictions. The three-part test is: (1) The restriction must be content-neutral; (2) it must be narrowly tailored to serve a significant government interest; and (3) it must leave open alternative channels of communication.
—
* Its like strict scrutiny except serve significant interest <– nope

Element:
(1) Reasonable time, place & manner restriction
(2) Content neutral
(3) Narrowly tailored to serve significant interest
(4) Alternative channels of communication remain open

Question 115

Forum Analysis - TPM -
Limited public forum and non-public forum

Answer 115

The government can regulate speech in a limited forum or nonpublic forum to reserve it for its intended use. The two-part test are:
1. The restriction is viewpoint neutral; and,
2. It must be reasonably related to a legitimate government purpose.

—
Element
(1) Viewpoint neutral
(2) Reasonably related to legitimate purpose

Question 116

Public Access to Trials

Answer 116

a) First amendment right of access to public trials may be outweighed by defendant’s 6th amendment right to a fair trial
b) If a limited group is excluded, also analyze under Equal Protection analysis / fundamental right of access – strict scrutiny

Question 117

Right of public access to trials

Answer 117

a) Related to this is a right of public access to trials, since a courtroom is a limited public forum.
b) The First Amendment analysis is that this right may be outweighed by an overriding interest, usually in the Sixth Amendment right of the defendant to a fair trial.
c) But if only a limited group is excluded from access, ALSO analyze this differentiation among groups under 14th amendment equal protection as discrimination based on the exercise of the fundamental right of access to public trials, and apply strict scrutiny.

Question 118

Prison Speech

Answer 118

Restrictions on prisoners’ speech will be upheld if reasonably related to a legitimate penological interest.

Question 119

(Govt) Funding and Speech

3 rules

Answer 119

1. When the government funds speech, it may do so on content-based criteria that reflect its own policies so long as the criteria are viewpoint neutral.
2. When the government funds speech to promote its own policy goals (such as family planning), it may do so on content-based criteria. (Rust v Sullivan).
3. If it funds private speech (such as legal aid or funding for the arts), however, it must do so on a viewpoint neutral basis. (Rosenberger).

Question 120

Commercial Speech**

Answer 120

Government may regulate commercial speech involving a lawful activity that is not misleading or fraudulent only if:
(1) it serves a substantial government interest;
(2) it directly advances the asserted interest; and
(3) it is narrowly tailored to serve the substantial interest. This requires a reasonable fit between the legislation’s end and the means chosen.
—
There are two steps to a commercial speech analysis. The first step is to determine if the speech is misleading or fraudulent, because such speech is not protected in any way. If the commercial speech involves a lawful activity and is not misleading or fraudulent, any regulation of that speech is valid only if:
(1) it serves a substantial government interest;
(2) it directly advances the asserted interest; and
(3) it is narrowly tailored to serve the substantial interest. This requires a reasonable fit between the legislation’s end and the means chosen.
—

Question 121

Narrowly Tailored

subrule

Answer 121

The “narrowly tailored” element here requires only “a reasonable fit between the legislation’s end and the means chosen.”
—
Note: include analysis on underinclusive and overinclusive

not in barbri

Question 122

Campaign Contributions and Spending

Answer 122

Campaign contribution limits are tested on whether they are closely drawn to match a sufficiently important interest—an intermediate scrutiny test. Thus, limits on contributions to candidates are valid, because of the interest in avoiding the appearance of corruption. But limiting the aggregate amounts any one person can contribute during an election cycle is unconstitutional since it limits speech and is not related to the quid pro quo danger of contributing to a particular candidate.
—
Campaign contributions:
1. Test – whether they are closely drawn to match a sufficiently important interest - an intermediate scrutiny test
2. Limiting campaign contributions to a particular candidate upheld:
a) Interest in avoiding the appearance of corruption
3. Limiting aggregate spending (on multiple candidates) by one person is unconstitutional

Question 123

Campaign Expenditures

Answer 123

Campaign spending limits imposed on candidates are unconstitutional limit on speech.

No limit on independent expenditures supporting a candidate if:
a) Not contributed to the candidate / their campaign; and,
b) No coordination with candidate

Question 124

Unprotected Speech

List

Answer 124

1. Clear and Present Danger
2. Fighting words
3. Defamation of private persons involved in nonpublic matters
4. Obscenity – Miller Test

Question 125

Obscenity

Answer 125

Obscenity is the description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, (1) appeals to the prurient interest in sex; (2) portrays sex in a patently offensive way; and (3) does not have serious literary, artistic, political, or scientific value—using a national standard on this prong (Miller v. California). A prurient interest means a morbid or shameful interest in sex, but not one that incites lust. Obscenity statutes must not be vague, so they must specifically described the banned content, although the state court, by interpreting the statute to proscribe specific descriptive conduct, can save the statute.
—
Elements
1. Appeals to the prurient interest in sex,
2. Portrays sex in a patently offensive way, and
3. Does not have serious literary artistic, political, or scientific value (using a national standard)

Question 126

Prior Restraint

Approach

Answer 126

1. First discuss the government burden test.
2. Then discuss the procedural safeguards only if they are factually applicable,

E.g., cases involving permits for demonstrations, parades and the like.

Question 127

Prior Restraint

Answer 127

A prior restraint is any governmental action that would prevent a communication from reaching the public. This usually refers to a licensing system, an injunction (such as an injunction against picketing or demonstrating), or a judicial order prohibiting the press from publishing certain information.
—

A prior restraint is any governmental action that would prevent a communication from reaching the public. This usually refers to a licensing system or an injunction (such as an injunction against picketing or demonstrating), but a classic form is a judicial order prohibiting the press from publishing certain information.
—
Hypo: applicants were given an obscenity statute where “sexually graphic” material was banned from sale unless approved by a local Review Board.
Issues
* obscenity under Miller standard for failure to specifically describe the content
* prior restraint - permission to speak was “licensed”, and thus it involved prior restraint

Generally, prior restraints are greatly disfavored
In order to allow prior restraint, the government has a heavy burden to show a special societal harm that justifies the restraint.

Question 128

General law or ordinance and prior restraint

subrule

Answer 128

A general law or ordinance is not a prior restraint—it is evaluated as regulatory conduct

Question 129

Procedural Safeguards
- even when conduct subject to prior restraint

Answer 129

Even if the conduct is that which can be subject to prior restraint, the Court requires three procedural safeguards: (1) the standards must be narrowly drawn, reasonable, and definite so as to include only prohibitable speech; (2) the government must promptly seek an injunction; (3) there must be a prompt and final determination of the validity of the restraint—meaning the appeal must be expedited.
—
Three procedural safeguards are required
1. The standards must be narrowly drawn, reasonable, and definite,
2. The government must promptly seek an injunction if required,
3. There must be a prompt and final determination of the validity of the restraint – prompt right of appeal

Question 130

2 types Religion Clauses

Answer 130

First Amendment contains two religion clauses:
1. the Free Exercise Clause and
2. the Establishment Clause

Question 131

Religion Clauses

approach

Answer 131

1. Discuss sincerity of belief if recent conversion
2. Discuss both clauses (establishment and Free Exercise) if applicable
3. Discuss both alternative analyses under Free Exercise
4. See approach below on Establishment Clause post-Kennedy v. Bremerton

—
1. It is almost always the case that, if religion is involved, both religion clauses should be discussed.
2. Within each clause, there are two types of analyses and, in most cases, you should consider each analysis—something that students often forget to do.

Question 132

Free Exercise Clause

Initial

Answer 132

As the initial part of a Free Exercise Clause discussion, if the party has recently converted to a particular faith, briefly discuss an inquiry into the party’s sincerity of beliefs, which is permissible.

Question 133

Strict Scrunity - Free Exercise Clause

Rule Type 1

Answer 133

Approach: Strict Scrutiny test –
FEC prohibits the government from punishing someone, either by imposing burdens, denying benefits or exhibiting hostility, because of their religious beliefs, absent it being necessary to achieve a compelling interest
—
The Free Exercise Clause prohibits the government from punishing someone, either by imposing burdens or denying benefits, or, as the Court found in Masterpiece Cakeshops, by exhibiting official hostility toward persons, because of their religious beliefs, absent it being necessary to achieve a compelling interest. Note that the Court has never found a sufficiently compelling interest.
—

case law - in Church of the Lukumi Babalu Aye v. Hialeah, the city banned only the precise type of animal slaughter engaged in during the Church’s rituals. Thus, the Court invalidated the ordinance, since it was precisely directed at that Church’s religious practice, and there was no compelling interest in banning only that type of animal slaughter.

1. Even if you find that the government is punishing someone based on their religious belief or practice, you must complete the analysis
2. Determine not only whether there is a compelling interest, but whether the regulation is necessary to achieve that interest.

Question 134

Generally Applicable Laws - Free Exercise Clause

Rule Type 2

Answer 134

[The second type of analysis applies] in the absence of direct punishment for religious belief or conduct, a state may prohibit and regulate general conduct that relates to the conduct of all persons under laws of general application, even if that conduct is in conformity with a person’s religious beliefs, so long as the purpose of the law is not to punish religion, and the means are reasonably related to achieving the secular purpose.
—
1. If a generally applicable law that incidentally burdens free exercise, upheld if rational basis. Employment Division v. Smith (punishing use of peyote even though it is sacrament of Native American Church)

Question 135

Modification of Rule Type 2

not stated rule yet

Answer 135

1. However, this analysis has recently been modified by the Supreme Court in the cases involving churches’ rights to hold services during the pandemic, by evaluating closure orders that seem to treat churches differently from other businesses, etc., and striking down such closure orders with respect to indoor services in the event of such differential treatment.

Question 136

Establishment Clause

Answer 136

If a law or ordinance establishes a preference for one sect or denomination over others, the law or ordinance will be examined using strict scrutiny.

Question 137

Establishment Clause

Approach

Answer 137

1. ask first if the law or ordinance establishes a preference for one sect or denomination over others.
2. If it does, use a strict scrutiny analysis.

e.g., This may well be a sect preference, requiring a strict scrutiny analysis
–the regulation concerning access of ministers to jail inmates distinguished between “recognized” and “non-recognized” religions

Question 138

Lemon test

Answer 138

a) If there is no sect preference, the Court uses the Lemon test. There, a government law or program will be valid under the Establishment Clause if it: (1) has a secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) does not produce excessive government entanglement with religion. Excessive government entanglement with religion often can mean that the government has to make value judgments concerning the beliefs of a particular religion.
—
b) Element
(1) Has a secular purpose,
(2) Has a primary effect that neither advances nor inhibits religion, and
(3) Does not produce excessive government entanglement with religion.

Question 139

Modern Test

Answer 139

the Court held that the Lemon test does not apply to longstanding monuments when there is a strong presumption of constitutionality when the monument is challenged on Establishment Clause grounds.

Question 140

Freedom of Press

Answer 140

Generally, the press has no greater right to speech than anyone else. But there are certain principles that have been developed, and, nevertheless, government cannot attempt to punish a media outlet with which it disagrees by government punishment.

e.g., of government punishment - threatening their FCC license to broadcast.

Question 141

Publication of Truthful Information

Freedom of Press

Answer 141

The government cannot punish the publication of lawfully obtained truthful information absent compliance with strict scrutiny.

Question 142

Access to Trials

Freedom of Press

Answer 142

There is also a First Amendment right for press and public to have access to trials, but it can be outweighed by an overriding interest articulated by the court, such as the right to a fair trial, so all the cases have involved criminal trials.

Question 143

Requirements to Testify

Freedom of Press

Answer 143

Reporters can be compelled to testify as to sources absent a federal or state shield law.

Question 144

Taxes and Regulation

Freedom of Press

Answer 144

General business regulations can be imposed on press, but they cannot be based on content absent compelling justification (strict scrutiny).

Question 145

Freedom of Association

MBE

Answer 145

The right to join together for political or expressive activity is protected by the First Amendment. It may be infringed only if necessary to achieve a compelling government interest. [The first issue is whether the activity is political or expressive.] The government may not force an organization to accept members who do not agree with the organization’s general thrust or point of view.
—
e.g., activity is political or expressive
a) Membership in the Boy Scouts, for example, is expressive because of the sincerely held values of the Scouts.
b) But going to a dance hall is not expressive—it is merely seeking entertainment.

Note:
* The right to join together for political or expressive activity
* Limitation requires strict scrutiny analysis
* Focus on whether the activity is political or expressive
* Government may not force an organization to accept members who do not agree with the organizatoin’s general thrust or point of view

MBE subjects:
1. Right to run for office
2. association for the practice of law such as Bar memberships