Constitutional Law

Question 1

Analysis for equal protection

Answer 1

An equal protection claim arises whenever the government treats people differently from others. The Equal Protection Clause of the Fourteenth Amendment protects against state action, while the Due Process Clause of the Fifth Amendment has an Equal Protection component that protects against federal government action.

If a fundamental right or suspect classification is involved, strict scrutiny is used to evaluate the regulation. If a quasi-suspect classification is involved, intermediate scrutiny is used. If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, rational basis applies. Additionally, for strict or intermediate scrutiny to be used, there must be intent (or purpose) on the part of the government to discriminate. A discriminatory effect is not enough.

Note that equal protection applies to people, not citizens; therefore, aliens and corporations can have standing for equal protection claims.

Question 2

Strict scrutiny

Answer 2

Burden on government to show the regulation is necessary to a compelling government interest.

Ex. race, national origin, alienage (federal alienage regulations are subject to rational basis scrutiny; state regulation is subject to strict scrutiny, except for traditional government functions).

Question 3

Intermediate scrutiny

Answer 3

Burden on government to show the regulation is substantially related to an important government interest (or an “exceedingly persuasive justification”).

Ex. gender, illegitimacy.

Question 4

Rational basis

Answer 4

Burden on plaintiff to show that the regulation is not rationally related to a legitimate government interest.

Ex. Poverty, Necessities, Age, Mental Retardation, Social and Economic Welfare Measures.

Question 5

Substantive due process analysis & fundamental rights

Answer 5

Substantive due process guarantees that laws will be reasonable and not arbitrary. The Due Process Clause of the Fifth Amendment applies to the federal government, and the Due Process Clause of the Fourteenth Amendment applies to state and local governments.

When a fundamental right is limited, the law or action is evaluated under strict scrutiny. In all other cases, rational basis applies. Fundamental rights include:

• All first amendment rights
• The right to interstate travel
• Privacy-related rights
• Voting

Question 6

To what does the fundamental right of privacy apply?

Answer 6

CAMPER:

• Contraception
• Abortion
• Marriage
• Procreation
• private Education
• family Relations

Question 7

When to apply strict scrutiny to violations of fundamental right to vote

Answer 7

• Discrimination in voting
• Reapportionment
• Switching party affiliation
• Ballot restrictions based on “special interests” (land ownership)
• Residency requirements

Question 8

Which voting issues are not deemed “fundamental”?

Answer 8

Reasonable restrictions on residency requirements or the right to be a candidate (payment of a filing fee, age restrictions). Apply rational basis.

Question 9

Affectation doctrine (commerce clause)

Answer 9

Congress may regulate any activity that has a “substantial economic effect” on interstate commerce.

Question 10

Requirements for a claim to be justiciable in federal court

Answer 10

• Ripeness
• Advisory Opinions
• Mootness
• Political Questions
• Standing

Question 11

When may a state regulate abortion?

Answer 11

As there is no longer a fundamental right to an abortion under the federal Constitution, the matter is left to the states to legislate. The Court has stated that laws restricting abortions are entitled to a “strong presumption of validity” under rational basis review.

Further, the Court has identified several legitimate state interests that can support a restriction, namely, respecting and preserving prenatal life at all stages of development; protecting maternal health and safety; eliminating “particularly gruesome or barbaric medical procedures”; preserving the integrity of the medical profession; mitigating fetal pain; and preventing discrimination based on race, gender, or disability.

Question 12

What is a bill of attainder?

Answer 12

Legislative punishment of a named group or individual without judicial trial.

Taking away someone’s license is the usual fact pattern for bills of attainder questions on the MBE.

Question 13

What interests are protected by 14th Amendment procedural due process? How do courts determine what process is necessary?

Answer 13

Where there is a deprivation of one’s life, liberty, or property interest, the Fifth and Fourteenth Amendments require procedural due process.

• Liberty Interests: First Amendment rights; right to contract; right to work; right to refuse unwanted medical care; rights of natural parents in the care and custody of their children.
• Property Interests: right to public education (12th grade); welfare benefits; continued public employment where termination can only be “for cause.”

To determine what process is necessary, courts should consider:

• (1) the private interest affected by the action;
• (2) the risk of erroneous deprivation of this interest through the procedures used, and the probable value of other procedures; and
• (3) the government’s interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that other procedures would entail.

Question 14

Article IV Privileges and Immunities Clause

Answer 14

The Article IV Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents. This includes aliens and corporations. Protects 4 rights:

• (1) Right to work
• (2) Right to access the courts
• (3) Right to own property
• (4) Right to medical care

If a state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.

Compare with the Privileges or Immunities Clause of the Fourteenth Amendment, which says that states may not deny their own citizens the privileges or immunities of national citizenship. Corporations are not protected under this clause.

Question 15

Dormant commerce clause analysis

Answer 15

If Congress has not enacted laws regarding a subject, a state or local government may regulate local aspects of interstate commerce. However, the state or local government must not discriminate against or unduly burden interstate commerce. If it does, it violates the Commerce Clause.

State or local regulations that are discriminatory in nature are almost always invalid. A discriminatory law may be valid if it is necessary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.

Non-discriminatory laws that incidentally burden interstate commerce are presumed valid unless the burden outweighs the promotion of a legitimate local interest.

Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments.

“Market Participant” Exception: state participates in market being regulated (ex. in-state and out-of-state tuition for colleges).

Question 16

Content-based speech regulations

Answer 16

Content-based regulations are subject to strict scrutiny, and are presumptively unconstitutional unless it is unprotected speech. A regulation is content-based if it restricts speech based on the subject matter or the viewpoint of the speech.

Unprotected speech includes:

• Clear and Present Danger
• Defamation
• Obscenity
• Child Pornography
• Fighting words
• Fraudulent commercial speech

Question 17

When will a content restriction on commercial speech be valid?

Answer 17

Commercial speech is afforded First Amendment protection if it is truthful. Speech that is misleading or fraudulent may be burdened. Other regulations of commercial speech will be valid if:

• (1) it serves a substantial government interest,
• (2) directly advances the interest, and
• (3) is narrowly tailored to serve the substantial interest.

Question 18

Requirements for content-neutral time, place, and manner regulations in a public forum

Answer 18

In Public Forum (sidewalks and parks) and Designated Public Forum (public property open to speech related activities), regulation must be:

• (1) viewpoint neutral;
• (2) narrowly tailored to serve a significant government interest; and
• (3) leave open alternative channels of communication.

Question 19

Requirements for content-neutral time, place, and manner regulations in a non-public forum

Answer 19

In Non-public (government workplaces, jails, military bases) and Limited public forum (public property open to temporary speech related activity) regulation must be:

• (1) viewpoint neutral; and
• (2) reasonably related to a legitimate government interest.

Note: courthouse grounds are not a public forum.

Question 20

Requirements for a regulation to not violate the Establishment Clause

Answer 20

The Establishment Clause prohibits government sponsorship of religion, meaning the government cannot aid or formally establish a religion. Like the Free Exercise Clause, it compels the government to pursue a course of neutrality toward religion.

• (1) The government generally must remain neutral with respect to religion, neither favoring nor disfavoring it.
• (2) The government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion.
• (3) The Establishment Clause must be interpreted by reference to historical practices and understandings. Religious practices and displays that have been around for a long time tend to get upheld because the Court sees them as a tolerable acknowledgment of the role that religion has played in the history and tradition of this country.

Question 21

Free Exercise Clause requirements

Answer 21

The Free Exercise Clause of the First Amendment (applied to the states by the Fourteenth Amendment’s Due Process Clause) prohibits the government from imposing any burden on or granting any benefit to people because of their religious beliefs.

With regard to questions involving the Free Exercise Clause, it is necessary to determine whether the law is: (1) religiously neutral; and (2) of general applicability.

If so, rational basis applies. If not, strict scrutiny applies.

Question 22

Writ of habeas corpus

Answer 22

A writ of habeas corpus is a civil cause of action brought against the jailor or custodian of a person placed in confinement. It does not operate to appeal or continue the criminal case against the prisoner in any manner, nor does it operate to make a determination of guilt or innocence as to the prisoner. The only question is whether the confinement of a person is in violation of his or her constitutional rights under the Fifth, Eighth, or Fourteenth Amendments to the U.S. Constitution.

Question 23

Third party standing

Answer 23

Third-party standing allows a claimant to challenge government action that violates the constitutional rights of third parties when:

• (1) a “special relationship” exists between the claimant and the third party; and
• (2) it would be difficult, unlikely, or impossible for the third party to challenge the government action itself.

Question 24

Takings Clause

Answer 24

Pursuant to the Takings Clause of the Fifth Amendment (applicable to the states through the Fourteenth Amendment), private property may not be taken for public use without just compensation.

If a government regulation denies a landowner all economic use of his land, the regulation generally will constitute a “taking” requiring the payment of “just compensation” under the Fifth Amendment. However, regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property. The court will consider:

• (1) the social goals sought to be promoted,
• (2) the diminution in value to the owner, and
• (3) whether the regulation substantially interferes with distinct, investment-backed objectives.

Question 25

Standing requirements

Answer 25

Standing in federal court requires injury, causation, and redressability. Injury-in-fact requires that the plaintiff’s injury is both concrete (actually exists and is not based on hypothetical future events) and particularized (affects the plaintiff in a personal way). There must be a causal connection between the government action and the injury, and a court decision in the plaintiff’s favor must be capable of remedying the grievance.

Question 26

Ripeness requirements

Answer 26

To avoid issuing advisory opinions, courts wait until laws and policies have been formalized and can be felt in concrete ways. This means that pre-enforcement reviews of laws or policies are generally not ripe. However, a plaintiff can establish ripeness before a law or policy is enforced by showing two things:

• (1) The issues are fit for judicial decision (does not rely on uncertain future events) and
• (2) The plaintiff would suffer substantial hardship in the absence of review.

Question 27

Content-neutral speech regulations

Answer 27

Content-neutral restrictions on speech (restrictions that are both subject-neutral and viewpoint-neutral) are generally subject to intermediate scrutiny; they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests (i.e., must be narrowly tailored).

This is often in the form of a time, place, and manner regulation.

Question 28

Requirements for an organization to have standing

Answer 28

An organization has standing to sue on behalf of its members if (1) there is an injury in fact to those members, (2) the members’ injury is related to the organization’s purpose, and (3) individual member participation in the lawsuit is not required (members are not seeking individualized damages).

Question 29

Presidential veto power

Answer 29

To pass a law, Congress must pass the bill in both houses and present the bill to the President for signature or veto. If the President vetoes, the act may still become law if the veto is overridden by a two-thirds vote in each house. The President has 10 days to exercise veto power. If he fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill becomes law.

The President does not have line item veto power. He cannot veto certain parts of a bill and pass the rest, it must be passed or vetoed in full.

Question 30

Requirements for valid state taxes under the Commerce Clause

Answer 30

A tax is valid under the Commerce Clause if:

• (i) the tax does not discriminate against interstate commerce;
• (ii) there is a substantial nexus between the activity taxed and the taxing state;
• (iii) the tax is fairly apportioned; and
• (iv) the tax fairly relates to services or benefits provided by the state.

Question 31

What constitutes “obscene” speech?

Answer 31

Obscenity, which is not protected speech under the First Amendment, is defined by the Supreme Court as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way, and—using a national reasonable person standard—does not have serious literary, artistic, political, or scientific value.

Question 32

Restrictions on presidential pardon power

Answer 32

The Constitution grants the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This pardon power is not subject to control by Congress, and it includes the power to commute a sentence on any conditions the President chooses as long as the conditions do not offend some other constitutional provision.

Even if the action of issuing the pardon amounted to the crime of obstruction of justice, the pardon itself would not be invalidated. The power to pardon is a constitutional power, superior to laws found in statutes.

Blanket pardons are valid, and the President may pardon actions that took place before that President took office.

The President has no authority to pardon those convicted of state crimes or held in state custody.

Question 33

What power is granted to the federal government by the Property Clause?

Answer 33

The Property Clause gives Congress the power to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” This power permits Congress to acquire and dispose of all kinds of property, and to protect its property with legislation.

Question 34

When may a state law be found invalid under the Supremacy Clause without express preemption?

Answer 34

A state law may fail under the Supremacy Clause even if it does not directly conflict with a federal statute or regulation if it interferes with the achievement of a federal objective or the federal regulations occupy the entire field. Where the federal laws are comprehensive or a federal agency is created to oversee the field, preemption will often be found.

Question 35

Appointments Clause

Answer 35

The Appointments Clause of the Constitution permits Congress to vest appointments of inferior officers only in the President, the courts, or the heads of departments. Enforcement of laws, for example, is an executive act; therefore, Congress cannot appoint members of a commission that exercises enforcement powers.

Question 36

What are the tests to determine if a regulation of government employees’ speech is constitutional?

Answer 36

Two tests apply to punishment of a government employees’ speech. Speech made by an employee while on the job and pursuant to their official duties may be punished. In contrast, if the speech is not related to an employee’s official duties and involves a matter of public concern, courts balance the employee’s rights as a citizen against the government’s interest in efficient performance of public service.

Question 37

How does the Eleventh Amendment and sovereign immunity restrict claims against states in court?

Answer 37

The Supreme Court has held that the doctrine of sovereign immunity reflected in the Eleventh Amendment bars a private party’s suit against a state in federal and state courts. Similarly, sovereign immunity bars claims against a state in federal and state agencies.

Question 38

When will the Supreme Court deny to hear an appeal from state court?

Answer 38

The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds—even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. If the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.

Question 39

What are the rules regarding the President’s foreign relations powers and treaty powers? When does the President need the advice and consent of the Senate?

Answer 39

The President has paramount power to represent the United States in day-to-day foreign relations. Even as to foreign relations that require congressional consent, the President’s powers are much broader than in the realm of internal affairs. No significant judicial control has been exercised over such declarations.

The President has the power to enter into treaties with the consent of two-thirds of the Senate. However, the President does not need such consent to void a treaty. Like other federal law, treaties are the “supreme law of the land” if they are self-executing (that is, effective without any implementation by Congress). State laws that conflict with a self-executing treaty are invalid. Note that the President generally doesn’t have any independent power to issue a memorandum ordering compliance with a treaty that isn’t self-executing.

Question 40

Thirteenth Amendment

Answer 40

The Thirteenth Amendment provides that neither slavery nor involuntary servitude shall exist within the United States and gives Congress the power to adopt appropriate legislation to enforce the proscription. Since the amendment is not limited to proscribing state action, Congress may adopt legislation regulating private parties. Under the amendment, the Supreme Court has allowed Congress to prohibit any private conduct that Congress deems to be a “badge” or “incident” of slavery, and has upheld statutes regulating private contracts.

Question 41

What rules govern mootness and what are the exceptions?

Answer 41

A live controversy must exist at all stages of review. Therefore, the plaintiff needs to be suffering from an ongoing injury, or else the case will be dismissed as moot. A claim is not considered to be moot in the following situations, even if the injury has passed:

• (1) Controversies capable of repetition but that evade review be cause of their inherently short duration
• (2) Cases where the defendant voluntarily stops the offending practice but is free to resume it
• (3) Class actions in which the class representative’s controversy has become moot but the claim of at least one other class member is still viable

Question 42

What powers does Congress have to tax and spend? When will congressional taxing measures be upheld?

Answer 42

Pursuant to the Constitution, Congress may tax and spend to provide for the general welfare. A congressional tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Congress may spend for any public purpose, not merely the accomplishment of other enumerated powers.

Question 43

What are Congress’s investigatory powers?

Answer 43

Congress’s power to investigate is limited to matters on which it can legislate; current or planned legislation is not required

Question 44

What is Congress’s power to establish a post office? Are there any exceptions where a state may establish one?

Answer 44

Article I, Section 8, Clause 7 of the Constitution grants Congress the power to establish post offices and post roads. This power grants Congress a monopoly over the delivery of mail. No other system for delivering mail, public or private, can be established absent Congress’s consent.

Congress has delegated to the Postal Service the power to decide whether others may compete with it, and the Postal Service has carved out an exception to its monopoly for extremely urgent letters.