Constitutional Law

Question 1

take care clause

Answer 1

• President MUST take care that the laws that congress enacts are faithfully executed.
• If money is apportioned to a certain cause he can NOT choose to use the money for something else or choose not use the money all

Question 2

Tax Payer Standing

Answer 2

A federal tax payer ONLY has standing if:
(1) Plaintiff is challenging a federal tax law because they are challening the way their tax money is being spent
(2) Congresss enacted the tax under the power to tax and spend
(3) it violates and exceeds the establishment clause

Question 3

Freedom of the press

What amendment?

What does it do?

Answer 3

**The FIRST amendment freedom of the press prohibits the government from restricting the right to publish **
1) lawfully obtained
2) truthful information
3) about matters of public significance

**A gov action that restricts the press’s speech is PRESUMED to be unconstitutonal UNLESS the GOV can prove Strict Scrutiny that this is the LEAST restrictive means **

right still applies to unlawfully obtained information IF:
1) speech relates to matters of public concern
2) The publisher did not obtain it unlawfully and does NOT know who did
3) original speaker’s privacy expectations are low

Question 4

Laws that favor a minority are subject to what standard?

What protection?

Answer 4

14th amend Equal Protection Clause

Strict Scrutiny

Laws that favor a minority or laws that discriminate against a minority

Same Strict Scrutiny standard for both

Question 5

State law that bans hiring a non-US citizen?

When would it be okay?

When would it not be okay?

What is the standard for each?

What amendment does this fall under?

Answer 5

14th amend Equal Protection Clause

Rational Basis Test = restrict the Foreigner from participation in the functioning of the government like politics, teacher, police officer

Strict Scrutiny = for all other bans
Example: notary public because its just clerical work, civil engineer

Question 6

Standard for:

Rational Basis

Intermediate Scrutiny

Strict Scrutiny

Answer 6

Rational Basis = The challenger proves it is NOT rationally and reasonably related to a legitimate conceivable gov purpose

Intermediate Scrutiny = gov proves it is substantially related to achieving an important and significant actual government interest and is narrowly tailored to serve that interest

Strict Scrutiny = gov proves it is necessary (no lesser alternative) to achieve a compelling gov purpose and this is the least restrictive means to do so

Question 7

Equal Protection

Answer 7

Equal Protection Clause = Applies to the states via 14th amendment and the federal gov via 5th amendment. It provides that ALL people are entitled to equal protection of the law. Equal Protection issues arise when the Government is treating 1 person or a group of people unreasonably differently then they are treating everybody else therby seperating this group of people from the rest based on classifications.

To determine the reasonableness of the law, it depends on if a suspect class, quasi suspect class, or fundamental right is involved. Otherwise, the law is subject to the rational basis test.

Rational Basis = Economic Regulation (tax or law) that applies to all people

MBE TIP:
Equal protection = affects a group
Due Process = affects ALL people

MBE TIP: VALID restrictions:
—be a resident for 50 days before you can vote (more time invalid)
—be a resident for 1 year before you can divorce
— College tuition is higher for out of state people

MBE TIP:
Equal Protection –> applies to states via 14th amendment
Equal Protection –> applies to federal gov via 5th amendment due process

MBE TIP: any affirmative action based on race is STILL required to adhere to strict scrutiny

Question 8

Due Process

Answer 8

Due Process binds the states through the 14th amendment and the federal government through the 5th amendment.
* requires gov action to be reasonable depending on the circumstances. A law affecting all peoples fundamental rights will only be held reasonable if it passes strict scrutiny, but a law thats not affecting a fundamental right just needs to pass the rational basis test.
* It provides the government can NOT take a person’s or corporation’s life, liberty, or property WITHOUT due process of law.
* There are 2 types of Due Process: Procedural and Substantive. These rights can be waived knowingly and voluntarily

CALM VIPERS I SLEEP
**Fundamental Right = Strict Scrutiny **
C = contraception
A = Allowed to private education
L = Family Life
M = Marriage
V = vote
I = interstate travel (state to state)
P = Parental right to have kids
E = Enjoy adult porn, not minors
R = Religion
S = Speech

**Non-Fundamental Right = Rational Basis **
-Intrastate Travel (within the state)
- social regulation
- economic regulation
- employment, business, labor
- Public Education

MBE TIP: Substantive Due Process = Liberty Interests

MBE TIP: right to refuse life-saving medical treatment, physical restraints used in prison, school, mental hospitals

MBE TIP: there is no right to food, shelter, public education so these are all subject to rational basis test

Question 9

Contracts Clause

Answer 9

ONLY APPLIES TO THE STATES AND STATE LAWS

prohibits states from retroactively and substantially impairing contract rights unless the government can prove

Private Contracts: Intermediate Scrutiny Test

Social or economic regulation effecting a Private contract: Strict Scrutiny test

Public contracts: Strict Scrutiny test

MBE TIP: the answer choice is talking about the contract clause when it says “right to contract” usually the wrong answer, unless they provide you the timeline of when the contract occured

Question 10

Supremacy Clause

When will State law be pre-empted from federal law?

Answer 10

A) Expressly says in the statute

Implied
B) it was the intent of the fed gov to occupy the entire field with its regulation (look at the purpose)

C) the state law directly conflicts with the federal law

D) state provisions PREVENT achievement of federal objectives

Presumption = if the state law involves health, safety, welfare court will presume the state police powers are NOT pre-empted unless that was the CLEAR and MANIFEST purpose of Congress when it enacted the federal law

Question 11

Federal Commerce Clause

Answer 11

Article 1, Section 8

Congress has BROAD powers to regulate. A federal law is within their Commerce Clause powers if it seeks to regulate one of the following:

1) the channels of interstate commerce (road, railways, airport, highways)
2) instrumentalities of interstate commerce as well as persons and things in interestate commerce (truck, train, plane)
3) activities that have a substantial effect on interstate commerce

Under the necessary and proper clause, it expands congresses power to regulate INTRAstate activities when:
4) instrastate activities that involves economic or commercial activity as long as there is a conceivable rational basis for concluding that in the aggregate it substantially affects interstate commerce

Non-Commercial or Non-Economic = Congress MUST show a DIRECT SUBSTANTIAL economic effect on interstate commerce, which generally they are NOT able to show.
Not valid = having a firearm in a school zone; and general acts of violence

Question 12

State Police Power

What amendment?

Answer 12

10th amendment reserves the rights to the states ONLY those powers NOT granted to the federal gov by the constitution.

PROHIBITS the fed gov from commandeering state officials by requiring states to enforce regulations and instead gives the power to state officials to regulate their own citizens when it comes to the health, welfare, and safety of their state citizens, subject to the Supremacy Clause

Question 13

what does the court ask to determine if gov action violates the establishment clause?

Answer 13

Establishment clause = prohibits the government from establishing, endorsing, or supporting a religion. A law that intentionally discriminates against a religion REQUIRES the GOVERNMENT to prove strict scrutiny. If the law is FACIALLY NEUTRAL because it does not disriminate against a particular religion it will ONLY BE constitutional IF remains within the HISTORICAL PRACTICES AND UNDERSTANDINGS of the establishment clause. Governments MUST AVOID coercion by NOT supporting or particpating in a religious activity or it will violate the test. In 2022, the supreme court abandoned the Lemon Test.

1) if the gov action neutral toward religion

2) if not, is there a long history of the action being accepted or would the founding fathers have found the gov action to be acceptable?

Not Acceptable = Coercion

MBE TIP: Buzz words: netural + historical practices

MBE TIP: gov CAN give aid to religious schools as long as its NOT used for religious instruction

MBE TIP: gov can give school financial aid to a defined class of people as long as they are not classified by their religion

Question 14

Congress power to tax and spend

Answer 14

Article 1, Section 8 = gives congress the BROAD power to tax and spend for the general welfare of the USA
* As long as the federal tax will raise money for any purpose that has to do with the general welfare of the USA + the tax is applied uniformly such that it applies to all public and private actors then it will be deemed valid. It does NOT matter if the tax will lessen the demand for the thing being taxed. There is NO requirement ON how the money is spent having to RELATE to what the tax is for.

Spending = Congress can spend money for essentially any purpose IF it is reasonably deemed to serve the general welfare of people in the US + it does not violate some specific constitutional ban, (like spending to advance religion)
* Conditional Grant of Federal Funds = Essentially congress is able to regulate areas that it wouldnt normally be able to do so BECAUSE they are ALLOWED to ATTACH CONDITIONS on STATES receiving FEDERAL FUNDS IF THEY COMPLY with a federal statute or administrative directive. as long as, the conditions are NOT unduly coercive (10% or more of states whole funding)
(1) the spending must be for the general welfare, but courts should defer substantially to Congress’s judgement
(2) condition should be clear providing the requirements and what the standard is to be met to be in compliance, so states can knowingly choose
(3) condition MUST relate to the federal spending program
(4) activity must be constitutional for the states to engage in it
(5) the condition can NOT be so coercive where the state has basically no real option than to comply (ex: funding being over 10% of the state budget)

President can NOT unilaterally suspend or cut a program where Congress has ALREADY apportioned the money to that Statute

• VALID TAX = congress CAN regulated state/local government to taxes but ONLY IF it applies to BOTH public and private sectors (minimum wage)
• INVALID TAX = 10th amendment limits congress power = tax that applies to state gov entities but NOT private bussinesses is NOT valid.
• Congress can use an EXCISE tax on any product, including to limit consumption of a BAD product like cigarettes for the purpose of general welfare by taxing

Question 15

Congress Power
Necessary and Proper Clause

Answer 15

Article 1, Section 8

Congress has the power to make ALL laws that are necessary and proper (appropriate) for executing ANY power granted to ANY branch of the federal government ONLY if it is rationally related a constitutional specified objective and not prohibited by the constitution.
* It MUST work in conjunction with ANOTHER federal power and can NOT stand alone.

MBE TIP: neccessary and proper will ONLY be correct if there is another congressional power linked to the question CC

Question 16

President Powers

Answer 16

Commander in Chief = NO power to declare war, BUT has extensive power to deploy military forces against any enemy foreign or domestic

Foreign Affairs power = President ALONE has the special role in implementing US foreign Policy in international realations as he is the sole organ of the fed gov.
- note: congress had the power to regulate commerce with foreign nations, but can NOT direct US ambassadors in their interactions with foreign gov because that is ONLY the power of the pres to do

**Treaty vs. Execuetive Order vs. Agreement **
* Execuetive Order to manage an execuetive agency = DOMESTIC ONLY; direct the actions of federal EXECUETIVE agencies that are NOT inconsisent or supercede with an express act of congress. NO power to direct OTHER agencies or people outside the exec branch, UNLESS congress authorizes
* Treaty with a foreign nation = If treaty conflicts with federal statute, the recent one adopted will CONTROL
* Execuetive Agreement = Foreign; The only thing Execuetive Agreements PREVAIL over is STATE LAW. otherwise the Federal and Constitutional laws are ALWAYS HIGHER AND WILL WIN.

**Pardon **= plenary power to ONLY pardon for FEDERAL CRIMINAL offenses, and NOT impeachment

**President power to appoint top level officers **= judges, ambassadors, heads of agencies

Question 17

Congress Power - War Powers

Answer 17

• congress has the POWER to DECLARE war
• power to raisemoney and appropriate money to SUPPORT the army and navy

Question 18

Standing

Answer 18

Article 3 of the constitution limits federal courts to decide only actual cases or controversies. A Plaintiff MUST have STANDING, which means the Plaintiff is the PROPER person to bring the matter to court. The Plaintiff MUST have a concrete stake in the outcome of the case throughout the case, including on appeal. Plaintiff can show this by:

1. Injury = particular + concrete = Actual or Imminent threat of PERSONAL injury that directly impacts the person bringing suit, and not just hypothetical. It does NOT have to be economic.
2. caused by gov action
3. Redressability = If the court rules in the Plaintiffs favor it will likely solve the Plaintiffs problem

***States have special Solicitude in the standing analysis, so even if its a close call, a court would likely find there is standing

a person challenging the constitutionality of a law does NOT need to violate it and await penalty as the sole means of relief.
If there is a CLEAR threat that failure to comply will lead to penalty then the injury is established. If not, then the issue is too ripe to bring.

Question 19

Free Exercise Clause

Answer 19

Free Exercise Clause = prohibits gov from acting in a way that interferes with the free exercise of religion and religious belief.
1) Whether Ishvers belief is religious = SC has made clear that FEC does NOT ONLY protect traditionally established religions and SC has never found an asserted religion to be non-religious. Also, FEC prohbits the determining the validity of a religious belief.

2) Whether Ishvers sincerly holds his belief = a court can assess the sincerity of the person asserting the belief. Courts look at same factors it would look at to determine if a person is lying.

3) Can Ishver show it was the Gov intent to target the religion? = FEC prohibits the gov from targeting religious practices and purposefully interfering, BUT it does NOT prevent GENERALLY APPLICABLE LAWS that are NEUTRAL on its face, but have unintentional burden on a religion ARE CONSTITIONAL and are subject to the Rational Basis Test. (prohibiting illegal drug use or animal sacrifice)

4) If so, Gov must show strict scrutiny for law to be upheld.

Under the Religious Freedom Restoration Act, a generally applicable FEDERAL law that causes a SUBSTANTIAL BURDEN on a person or company to be able to exercise their religious beliefs can be challenged and the Government must prove strict scrutiny. This was the ruling in the Hobby Lobby case, where a law violated a companies religious beliegs by requiring them to provide contraception to all employees.

Question 20

What is the test used to determine if the President is acting within his authority?

Answer 20

Youngstown Factors
* Highest auth = When the president acts with the express or implied authority of congress his powers are at its maximum and his actions are likely valid
* valid auth, but diminished = when the president acts where congress is SILENT, his action will be upheld IF the act does NOT take over the powers of another branch of government or prevent another branch from carrying out its tasks (like rule making power or judicial power)
* Lowest Authority = acting against an express or implied will of Congress, likely will be deemed invalid

Question 21

• Facially Discriminatory Law

Answer 21

• Facially discrimnatory laws are ONLY allowed if there are NO other LESS discrimnatory means to promte the governments interest

Question 22

Symbollic Speech

Answer 22

Expressive conduct is PROTECTED by the First Amendment freedom of speech

Public Place
* Content Neutral Restriction = Intermediate Scrutiny = Narrowly tailored to further a significant gov interest that is unrelated to the suppression of a free expression and people have OTHER ways of communicating their messages

Question 23

Takings

Answer 23

5th Amendment Taking Clause, PROHIBITS (1) the government from taking (2) PRIVATE property (3) for public use (4) without just compensation, UNLESS there is an imminent emergency like a terrorrist attack. Government has the burden of proof. This is applicable through the states through the 14th amendment.

Public Use = Rationally related to ANY conceivable public purpose, including economic development or public benefit rather than actual public use.

Just compensation = fair market value of the property AT THE TIME of the taking to EVERYONE that has an interest in the land based on OWNERS Loss NOT Governments Gain. Compensation is proportionately shared with each interest holder. (indefinite or for life profits a prendre, remainders, tenants, life estates, easement holder, etc)

MBE TIP: Adding a tax to a product is NOT a taking.

Question 24

Supreme Court has Original Jurisdiction in what cases?

Answer 24

Article 3

• ambassadors
• public ministers of foreign countries
• consuls of foreign countries
• if the state is a party

Congress gives the Supreme Court Appealate Jurisdiction over cases and controversies they specifically allow, but they can NOT use this power to seriously interfere with the establishment of new supreme court law, by freezing out certain subjects purposefully.

Supreme court will ONLY hear a case 1) after final judgement from the highest court within each divison AND 2) its a violation of federal law or constitution
- supreme court MUST hear these cases = on appeal — 3-judge district court panel for injunctive relief
- writ of certiorari = supreme court has COMPLETE discretion on whether to hear these cases or not, this includes:
- all cases from the federal court of appeals
- state court cases where the constitutionality of a statute or federal treaty is at issue
- state court cases where the state statute violates federal law

MBE TIP: Supreme court will NOT EVER hear a state court case where the case rests on 2 grounds , the state law and the federal law, BECAUSE even if they reverse the federal law it will NOT change the result in the Case
—> Issue spot: LOOK in the fact pattern “state supreme court resolved the case” + now John wants to appeal and bring it to federal/supreme court

MBE TIP: congress can NOT enlarge or restrict the supreme courts original jurisdiction by sending whatever cases they want to the Supreme court, HOWEVER, congress CAN regulate appellate jurisdiction . So they can change what appellate cases can go to the supreme court

MBE TIP: congress can NEVER tell the Supreme Court what to do. BUT they do have power to create lower federal court and choose what cases the lower federal courts can hear

Example: Congress can NOT limit courts power to hear abortion cases just because it is controversial. it needs a broad and neutral reasonaing to do this

MBE TIP: A federal question is a case conflict about: fed law, constitution, US treaty

MBE TIP: Appealate = appeal = there must have first been a lower court decision before it can be appealed

Question 25

Congress - power to control immigration and naturalization

Answer 25

• there is NO violation of the equal protection clause when congress creates laws that classifies aliens into a different group as long as its reasonable and not arbitrary by showing its rationally related to protection a conceivable government purpose

Question 26

Congress Power - Property Clause

Answer 26

Article 3, Section 3

Gives congress the power to make all necessary rules and regulations concerning the property of:
* DC,
* National Forests
* Federal territories,
* military bases
* Indian Reservations (includes the wild animals and hunting on the federal land)

Question 27

Congress Power = Pass Laws

Answer 27

Pass Laws = Congress has the power to pass laws (legislate) within the scope of their enumerated powers. They can also delegate this rulemaking and regulatory power to another branch or agency as long as the power does not restrict it. There must be intelligble standards set when giving the power.

DC = congress can make all the laws for DC under the constitution

Congress CAN OVERTURN an action made by an execuetive agency by enacting a statute and going through the approval process.

**How to pass the law: **
#1) Bill passes through the House and Senate by majority vote
#2) President signs or vetos the bill in its entirety
#3) congress can OVERRIDE the veto by getting 2/3 of majority vote in house and senate

Question 28

Fundamental Rights that require Strict Scrutiny

Answer 28

CALM VIPERS

**Fundamental Right = Strict Scrutiny **
C = contraception
A = Allowed to private education
L = Family Life
M = Marriage
V = vote
I = interstate travel (state to state)
P = Parental right to have kids
E = Enjoy adult porn, not minors
R = Religion
S = Speech

Non-Fundamental Right = Rational Basis
-Intrastate Travel (within the state)
- social regulation
- economic regulation
- employment, business, labor
- Public Education
- being poor
- food,
- shelter

Question 29

14th Amendment vs. Article 3
Privilege and Immunities Clause

Answer 29

ONLY APPLIES TO STATE LAWS, NOT FEDERAL LAWS!
NO Protection for: corporations, alien, non-US citizen

14th amendment Privileges and immunites clause protects people citizens equality on a national level, including: travel state to state, vote in national elections, enter public lands
* TEST: Strict Scrutiny: Narrowly tailored to achieve a compelling government interest.
* Violation Example: a state law restricts a person moving into a community to attend college can NOT vote in any state official elections. (Way TOO broad of a law, it could be narrowly tailored to ensure only community members vote)

Article 3 Privilege and Immunities Clause
* ONLY protects OUT OF STATE citizens from IN-STATE/CITY discrimination regarding rights FUNDAMENTAL to unifying the states into one nation including: right to court, a persons ability to work, support themselves, practice their profession, or engage in their business
* It will ONLY APPLY if: (1) person is OUT of state AND (2) effects a commercial activity like someones JOB, not hobby
* Issue Spot: nonresident being treated differently then resident

Exception: Discrimination against a non-resident will be allowed if:
(1) non-resident is part of the evil the state is trying to prevent
(2) discrimination is substantially related to the evil
(3) no less discriminatory restrictive alternative available (hard test to meet)

Question 30

Bill of Attainder

Answer 30

Government can NOT pass a law that punishes or terminates a person or group BY NAME or easy identification, without first having a judicial trial

A company policy change is allowed and is NOT a bill of Attainder.

MBE TIP: if the statute applies to everyone then it is NOT bill of attainder, Look in the LAW itself for the group to be named or easily identifiable

Question 31

• Void for Vagueness
• Unfettered Discretion
• Overbroad

Answer 31

Void for vagueness = Violates the due process clause because the law does NOT provide people with fair and reasonablr notice of the boundaries between lawful and unlawful conduct

Unfettered discretion = A regulation can NOT give broad discretion to government officials to determine speech issues. There MUST be narrowly defined standards tailored to the regulations objective in order to reasonably maintain public order.

Overbroad = A law that is OVERBROAD is UNCONSTITUTIONAL if it regulates substantially more speech than necessary, where it casts such a large net that it restricts unprotected speech and protected speech due to lack of narrowness. Typically words like “Any” or “All”.

A person whose speech that would NOT normally be protected because it falls within another category, like commercial speech for false representation, may still be able to bring a first amendment claim saying the law is SUBSTANTIALLY overbroad that it restricts even protected speech of people not before the court, UNLESS the COURT has previously deemed the law to ONLY be applicable to UNPROTECTED speech.

Question 32

Intergovermental Immunity Doctrine

Answer 32

Under the supremacy clause, states can NOT regulate Federal gov, Federal Buildings, or Federal Agents acting within the states borders pursuant to Federal action WITHOUT CONSENT from the Federal gov to regulate them.

Agents must be acting in the course of their federal duties for it to apply

Direct Taxing = NOT VALID against federal instrumentalities WITHOUT CONSENT BECAUSE its unconstitutional to pay state tax out of the federal treasury

Indirect NON-discriminatory Taxing = VALID if it is not discriminatory AND does NOT directly apply to the federal government
Example = gov hires an independent contractor to build them a building. any materials the contractor buys will be subject to the generally applicable sales tax of the state
NOTE = the source of the money is NOT relevant to the analysis of whether the tax is valid.

NOT VALID = requiring military people to have DL to drive military equipment

VALID = state income tax on federal employees

Question 33

Government Placing burdens on Speech because of its content
- What test?
- What exceptions?

Answer 33

Strict Scrutiny

Unless Unprotected Category:
- Fighting Words = Fighting words causes the LISTENER to LIKELY retaliate by commiting his own act of violence, while true threats are those where the speaker is aware that others would find his speech to be threatening violence and still does it creating a reasonable apprehension of fear
- present danger of imminent lawless action = government CAN restrict speech if (1) the speech is directed at inciting or producing imminent illegal action AND (2) the speech LIKELY would produce or incite such action. (normally a group acting)
- Obscenity = In the Miller case, the supreme court held that taken as a whole the work will be obscene if:
1) if a reasonable person within the local community would find the work appeals to purient interest in sex
(2) the work is patently offensive (hard core sexual conduct)
(3) based on national reasonable person it lacks serious literary, artistic, political, or scientific value

MBE TIP: Obscenity tested look for it to be based on a reasonable person in the local community standard

MBE TIP: “Utterly” or “Reedeeming” is the OLD TEST and WRONG ANSWER

Question 34

Ex Post Facto

Answer 34

Ex Post Facto = Government can NOT go back in the past to change a law that will cause criminal or penal punishment for conduct that occured BEFORE the law became effective.

THEY CAN: change the law for civil statutes or change different punishments like a person losing their license and require federal courts to adhere in all cases where final judgement has not be rendered.

Question 35

types of takings

Answer 35

There are 3 types of takings: (1) total per se taking, (2) partial or regulatory taking, and (3) Exaction taking.

Typically, courts find a total per se taking occurs if:
(A) government takes actual ownership, destroys, or physcially occupies a portion (no matter how minor) of private personal or real property
(B) government interferes making an owners property permanently deprived of all economic value, requiring land to be left substantially in its natural state

Partial or Regulatory taking = Property regulation’s that decrease a property’s econcomic value usually do NOT require Just Compensation, if there is still a viable economic use of the property. Courts balance the Penn Central Factors to determine if a regulation is a partial taking sufficient to find compensation is justified:
(A) character of the regulation: value benefit to community and burden to the owner
(B) economic impact (decrease in value) of the regulation on the owner
(C) extent the regulation interferes with an owners reasonable, investment-backed expectations regarding property use

• Exactions = conditioning a building or development permit by either: granting public access onto the property OR conveying a piece of the property to the government IS CONSIDERED a taking and REQUIRES compensation. UNLESS gov can show:
  1) that the condition relates to a legitimate government interest (nexus)
  2) there is rough proportionality between the size of the give-back demanded and the burden the proposed development causes on the public

Question 36

Vested Investment Right

Answer 36

The vested rights doctine protects land owners from zoning ordinance changes if:
(1) substantial construction has began AND
(2) substantial expenditures have been made in reliance on a valid permit. Generally, if no contruction has begun the land owner WILL NOT obtain a vested right, EVEN DESPITE spending lots of money.

Question 37

Zoning
Ammortization
Variance

Answer 37

Use regulations are zoning ordinance that seperate land based on its use. A new zoning use can NOT be applied retroactively to make someones once compliant use a now non-conforming use. A person will remain protected to use their property within the original non-conforming use, unless they abandon, substantially change, or destroy the property.
—> Adult entertainment, like Deja Vu Showgirls, can be limited in their size and location to reduce secondary effects of such a business like increased crime or property value going down, BUT there can NOT be a complete ban of Strip Joints.

Ammortization provisions can be applied within the zoning ordinance that require the nonconforming use to be terminated after a specified period of time. It is only constitutional if the period of time is REASONABLE considering the benefits and losses to the pricate owner and the public.

A person can seek a VARIANCE exception to a zoning ordinance by applying for a variance that may be granted if: (1) owner will suffer hardship because of the ordinance AND (2) variance will NOT damage or harm the public welfare

Question 38

Spot Zoning

Answer 38

Spot Zoning occurs when a small area of land is zoned DIFFERENTLY than surrounding areas of land for the benefit of the small landowner.

Spot Zoning will be upheld if supported by a reasonable basis, factors include:
(1) size of the specific area, is the zoning compatible with the existing zoning plan or is it random,
(2) benefits and detriments to the landowners, surrounding land owners, and the community

Question 39

Freedom of Association and Belief

Answer 39

Though the first amendment does NOT expressly mention the freedom to associate and belief, The supreme court has repeatedly held it IS IMPLIED and PREVENTS the GOVERNMENT from PUNISHING or DENYING a privilege or a benefit, just because someone is a member of a group OR just because someone refuses to disclose they are a member of a group or not.

Any laws restricting a person from associating with a group or requiring disclosure requires the government to satisfy Strict Scrutiny.

The government can deny a benefit or privilege, like bar membership, if
(1) person is still actively involved in the group,
(2) the person KNOWS of the groups illegal activity, and
(3) the person has the specific intent to further the groups goals.
The government IS ALLOWED to ASK questions to figure out the persons intent AND DENY the person for REFUSAL to ANSWER THE INTENT QUESTIONS.

Question 40

Commercial Speech Regulation

Answer 40

1) Whether the speech concerns a lawful activity and is NOT misleading or fraudulent? False or misleasing commercial speech is NOT protected. The government CAN prohibit professionals from using a certain trade name and prohibit lawyers from soliciting clients in person for profit. (but not accountants)

Regulating commercial speech requires a 2 step approach.

#2) Commercial Speech used to promote a business, like advertisements or bill boards, that ARE TRUTHFUL are protected by the First Amendment, HOWEVER, the government CAN still regulate it IF: (1) there is an important government purpose other than the supression of speech, (2) the regulation DIRECTLY advances that purpose AND (3) it is narrowly tailored to achieve that purpose, meaning the restiction is NOT substantially more extensive than necessary to protect that interest and is a reasonable means to the ends.

Just being a membership group is soliciting a membership fee does NOT make it a commercial speech.

Question 41

Types of Regulation
* government employee
* public school student
* flag salute
* corporations and unions
* Government Speech

Answer 41

Government Employee = A government employee who is making a statement pursurant to their government job will not be protected by the first amendment if the government can justify why they must treat the employee differently than a public citizen based on a government interest. However, the employee WILL be protected if they are speaking as a private citizen on a matter of public concern and the government has no adequate justification.
* SC has held gov can NOT fire an employee for their political views and associations, unless the person MUST have certain views to EFFECTIVELY perform their JOB. (A clerical employee is too LOW level for this to apply)

Public School Student = A Public School has greater latitude to regulate speech by a student or teacher, but the school must be able to justify the speech restriction by showing the speech would materially and substantially interfere with the operation of the school.

Flag Salute = forcing a person and punishing them for failute to comply with saluting the flag where it offends the persons beliefs is a violation of 1st and 14th amendment

Corporations & Unions = In the Citizen United Case, the Supreme Court held corporations and unions have a 1st amendment fundamental right to make independent expenditutes in support of political candidates

Government Speech = Government speech will be upheld based on rational scrutiny test. To determine if its government speech or the government privately speaking relevant factors include: history of the expression at issue, publics perception as to who is speaking, the exent to which the government has shaped the message, the extent of government control.

MBE TIP = if the gov employee can ONLY be fired FOR CAUSE then they HAVE property interest in their job; if they can be fired AT WILL then they do NOT have a property interest in their job

MBE TIP = a clerical employee is TOO low level for their political views to have any effect on the GOV and restricting their speech is unconstitutional

Question 42

prior restraint on speech

Answer 42

A prior restraint on speech is where the government tries to prevent the speech BEFORE it even occurs via a court order OR licensing requirement. Prior restraints are rarely allowed and presumed unconstititonal, EXCEPT when national security is at stake.

Court orders (injunction or gag order) preventing speech require the government to satisfy strict scrutiny.

The government can require licenses if: (1) gov has an important reason for licensing, (2) objective specific articulated standards are used to grant the licenses, and (3) timely procedural safeguards are in place if a license is denied for appeal.

Collateral Bar Rule = A court order or license must be complied with UNTIL it has been properly overturned, even if it is improper. Any prior violation will BAR the person from challenging the court order or license.

MBE TIP: Issue spot by looking for gov permission needed before putting up a sign, having a parade, or reporting about war)

Question 43

Government Restraints on Free Speech

Answer 43

The government is limited in how it can regulate speech. The speech regulation MUST NOT be: a prior restraint, overbroad, vague, or unfettered discretion.

Question 44

Types of Forums

Answer 44

**Public forums are gov properties historically open to the public like a street, sidewalk, or park.

Designated Public Forums are forums that are historically closed to the public, but the government opens it up to the public at large for a specific purpose by practice or policy like using a classroom after school for a social group. Government CAN remove this designation and make it a Non-Public Forum if they choose. **

Public and Designated Public Forum speech restriction must:
(1) the regulation is neutral regarding its subject content and viewpoint, (not regulated based on topic of speech + ideology)
(2) it serves an important/significant government interest,
(3) it is narrowly tailored to serve that interest (doesnt have to be the least restrictive means)
(4) leaves open alternative channels of communication, or expression. (reasonable)

Limited public forum is government property that the government opens up for limited use by: certain groups OR discussion of certain subjects

Nonpublic forums is a forum that is closed to the public like a military base, sidewalks on post office property, school while in session, government workplace, airports

Limited Use public forum and Non-Public forums must:
(1) viewpoint neutral (not regulated based on ideology)
(2) serve a legitimate government interest,
(3) be reasonably related to serve that interest

MBE TIP: public forum like a street or park or capitol steps look for buzz words in correct answer: significant/substantial/important gov interest or alternative communication or expression

MBE TIP: non public forum like a billboard or bus ad look for buzz words in correct answer: reasonably related or legitamate gov purpose

Question 45

Content based vs. Content Neutral Regulation on speech?

Answer 45

Content based Regulation = if the government is restricting, prohibiting, or burdening the speech because of its CONTENT subject or viewpoint, then the Government must prove strict scrutiny for the regulation to be upheld.
—> this includes making an entire subject category off limits, regardless if its neutrality to both sides of the argument subject
—> Some group wants to demonstrate, march, affiliate, advertise, or meet to spread their message

Content Neutral Regulation = The governments regulation of the speech is subject to intermediate scrutiny and will be upheld if they can show (1) the regulation is neutral regarding its subject content and viewpoint, (2) it serves an important/significant government interest, and (3) it is narrowly tailored to serve that interest.

Unprotected Speech = Unprotected speech must still be regulated in a content netutral way.

Question 46

Procedural Due Process

Answer 46

Procedural = requires the government to give fair process BEFORE they INTENTIONALLY terminate a persons liberty or entitled property interest. Fair process typically requires notice and a hearing. Courts use a balancing test to weigh the governments interest and the persons interests. The Matthew factors help a court weigh the interests.

To determine if there is procedural due process, Courts ask:

(1) is the threatended interest protected?
Property = Property interest is more than just a need or desire for the benefit, it requires a legitimate claim or enetitlement that a benefit would continue to be reasonbly expected under the state or federal law.
Examples: suspending a kid in school, government seizing your assets (unless exigent circumstances where it could be hidden or destroyed), government taking your real or personal property, government employment, government licenses, government benefits that you are already receiving

Liberty = Liberty is deprived when a person loses their physical freedom, fundamental right, or choice
Examples: a trial before you go to prison, a trial before your drivers license is revoked, child custody rights taken away, detaining a US citizen as an enemy of combat

(2) if so, what is the fair process due to the plaintiff?
* Fair Procedure = at a minimum requires an opportunity to present an objection to the proposed action to a fair, neutral decisionmaker
* Judicial Hearing = hearing, counsel, call and cross examine witnesses, fair trial, appeal
* Non-Judical proceeding = Courts use a balancing test.

Matthew factors:
(1) what is the importance of the interest to the person that will be affected by gov action?
(2) what is the added value of the procedural safeguards used and the possibility of a substitute procedural safeguard to avoid the high risk of depriving the person their right?
(3) what are the governments interests, including in fiscal and administrative efficiency?

NO prior hearing = licenses suspended after getting 3 tickets where you had previous judicial hearings in each of those cases

YES prior hearing = before a license is suspended or terminated

MBE TIP: Procedural Due Process = Property Interests
- Government Jobs “cause” or “tenure”
- Licenses issued by gov
- gov public benefits

MBE TIP = make sure the persons interest has VESTED or he is ENTITLED to the property interest

MBE TIP = if the person has already been CONVICTED and then his license has been revoked without a hearing there is NO PDP VIOLATION, because the result would have been the same whether he was given a hearing or not.

MBE TIP:
Notice + Hearing BEFORE termination = mental institution, welfare benefits, custody rights, seize real property, DL revoked, Gov License being Revoked

Prior notice & oppurtunity to respond + Post Hearing = social security disability benefit, Government Employment

Prior Notice + Oppurtunity to respond = Public School Suspension

Post Notice + Post Hearing = US Citizen Enemy Combatant, seize personal property

Question 47

Substantive Due Process

Answer 47

Substantive = limits the government in how they pass laws to regulate or take away ALL peoples Life, liberty, and property to ensure they are fair and reasonable, and NOT arbitrary. To determine if the government has a fair reason, if its a Fundamental right it requires Government to prove strict scrutiny and non-fundamental rights require Plaintiff to prove Rational Basis.

Question 48

When is strict scrutiny needed?

When is intermediate scrutiny needed?

Answer 48

Strict = Race, alienage, national origin

Intermediate = Gender, Illegitimacy (bastards)
* VALID = all male draft, men rape laws, US father to prove parentage of foreign bastard kids

Question 49

Ripeness

Answer 49

Ripeness refers to whether the dispute has developed enough such that there is a live controversy that is ready to be litigated, including concrete issues, potential enforcement, presence of harm or an immeditate threat of harm. A hypothetical future harm will not be ripe for review.

AFTER a law has been adopted, Courts can consider reviewing the law BEFORE it has been ACTUALLY enforced against the person/state if
(1) there will be hardship on the person if the courts dont review it now AND
(2) if the court has all it needs to decide the issue right now.

MBE TIP: if the law has NOT even been passed yet then the case is NOT RIPE AND READY for court; court must then dismiss it

Question 50

third party standing

ORGANIZATION third party standing

Answer 50

Generally, third party standing is not allowed, but an exception will be made if Plaintiff can show:
(1) the Plaintiff HAS individual Standing
(2) Either: (a) its difficult for the third party to assert their own rights; OR (b) a special relationship exists between the Plaintiff and the Third Party

an ORGANIZATION can bring a claim on behalf of its members ONLY IF:
(1) Each member has their own individual standing
(2) The interests the organization are asserting are related to the Organizations Purpose
(3) The case does NOT require the individual members to actually participate

Question 51

What type of cases can Federal Court hear and Supreme Court hear?

Answer 51

Article 3 of the constitution limits federal courts to decide only actual cases or controversies. Courts can NOT give advisory opinions or address hypothetical disputes because there is NO LEGAL BINDING EFFECT.

(A) Declaratory Judgements are permitted where the Plaintiff is essentially asking the court to clarify the legal effect of a regulation or the obligations of all the parties involved in regards to the controversey.

(B) Political Questions = are NOT permitted IF the issue is committed to another branch of the federal government (president or congress) OR if there are no manageable standards by which the court can resolve the issue, the federal court will NOT hear it.

MBE TIP: Political question issues usually have facts where the president or congress is acting on a power the constitution recognizes

Political question examples that the court will NOT hear: form of government, presidents foreign policy, impeachment or removal process, gerrymandering drawing of districts

Question 52

Mootness

Answer 52

It the Plaintiff’s injury or live controversy that existed at the time the suit was filed, no longer exist or have been fixed already, the court can NOT hear the case and it must be dismissed as MOOT. However, the court WILL hear the case if:

(a) the injury or controversy is capable of being repeated against the SAME plaintiff and it keeps escaping review (abortion); collateral consequences still remain that are adverse to the Plaintiff
(b) Defendant voluntarily stops his activity, BUT can resume it at any time
(c) Class Action where at lease 1 member of the class has an ongoing injury

MBE TIP: If the case is not moot or ripe, the court must dismiss it.

Question 53

11th amendment — Soverign Immunity

Answer 53

11th Amendment and Soverign Immunity does NOT allow a private person to sue a state in Federal or State Court.

Exceptions:
- Express Waiver: States can be sued if they expressly consent to it. Many states have waived the immunity to TORT claims.
- Congress expressly and validly removes the protection under Article 5 of the 14th Amendment
- Sue a government official for damages (retroactive damages are NOT allowed)
- Sue a government official for injuction to stop his future conduct that will violate federal law or the constitution
Federal government can sue states
- States can sue other States
- Suing a local City or County
- Suing the Police

MBE TIP: Look for a law that congress passed that would allow a person to sue a state

Question 54

Federal Immunity

Answer 54

Federal Immunity:
—> states can NOT sue the federal government
—-> states can NOT tax the federal government, however, private people that work for the government CAN be taxed
—-> person can NOT sue the federal government UNLESS a law has been passed saying they can

State Rights:
—-> Federal gov can sue a state
—-> Federal gov can NOT TAX a state for just acting in their regular govermental business, they CAN tax a private person or for-profit business working on that land (Example: gift shop in the white house)

Question 55

State Action

Answer 55

State Action = When alleging a constitutional violation, plaintiff MUST show the violation is in some way attributable to government action, either local, state or federal.

The action of a private actor can qualify as government action if:
(a) public function = private actor does things that are traditionally and exclusively public functions which are governmental in nature
(b) heavy involvement = the state is heavily involved in the activity by authorizing, encouraging, or being entangled with the activity
ex: gov enforcing certain private contracts, issue or joint action between state and private person, encouraging private disrimination

The supreme court has held that running a private school or college is NOT state action EVEN when said school is funded PRIMARILY by government funds.

Public Function examples = private groups running elections, private company towns, parks, prisons, municipal districts, elections

NOT VALID heavily involvement examples =
- State accreditation, private funding, or regulation of University does NOT make the universitys conduct the states action
- State just granting money by itself
- Renting a government facility by a private person or company
- Inviting the public to an activity by a private person or company
- gov funds private school 99% and fires teacher for speech
- NCAA fires basketball coach at state university
- Private club with state liquor license racially discriminate
- Gov heavy regulating an activity and gives contract to just 1 company to do

VALID Entanglement examples:
- gov lease property to restaurant that racially discriminates
- state provides books to school that racially discriminates

MBE TIP: can NOT sue for any of these rights if its a private person or company doing the action

Question 56

State Powers

Answer 56

Federalism is the concept that the Federal government and the State Government COEXIST with each other.

10th Amendment = the 10th amendment provides that powers NOT delegated to the federal government OR prohibited by the constitution are RESERVED to the states.

—> Federal government can NOT commandeer the states: Congress can NOT require cities or states to enact laws or administer Federal Law. They also are NOT allowed to impose duties on state officials.

—>States Police power: States have police power to make laws for the health, safety, and welfare of their citizens, BUT it can not conflict with a federal law. States can NOT regulate the federal government and make them obey any standard. States have the power to take property BUT CAN NOT take it without JUST compensation.

—> Federal law generally can NOT be applied to state legislators who are acting in the course of their government duties

—> Voting: states are FREE to set their own rules on how they draw the legislative districts to represent their citizens as long as they retain a republican form of government

—> States can impose and collect taxes as long as it does not violate the constitution

—> States can NOT directly tax the federal government or its agencies, unless congress consents. States CAN tax products and sales to purchasers even if the purchaser has a contract with a federal agency.

MBE TIP: if you see a federal law and a state law in the facts it is most likely a supremacy issues if there is a conflict between the 2 laws.
—> State law CAN be stricter then federal law because of the police power
—> State law can NOT be less strict then federal law otherwise it will conflict

MBE TIP:
State Police Power = YES
There is NO federal police power

MBE TIP: violation of comandeering rule if Federal law is REQUIRING the states to comply

Question 57

Negative Dormant Commerce Clause

Answer 57

• The Commerce Clause grants the federal government power to regulate the channels and instrumentalities of commerce, and other activities that affect interstate commerce. If a valid federal law under the commerce clause conflicts with state law, the federal law invalidates the state law because of the Supremacy Clause. Even if the federal law and state law do not conflict, the federal law may preempt the state law by occupying the field.
• Where Congress is silent on a matter, a state has the power to regulate the local aspects of commerce as long as the regulation is not unduly burdensome to interstate commerce and not discriminatory.
• Protectionism = the state law is invalid if has a disriminatory impact by favoring local economic commerce interests OVER out-of-towners interests creating an undue burden on interstate commerce
• Facially Discriminatory = the state law is invalid if it disriminates facially by favoring local economic commerce interests OVER out-of-towners interests creating an undue burden on interstate commerce
• Undue Burden = the state law is invalid if it is unduly burdensome to interstate commerce where the burden clearly outweighs the benefits to the state/local gov. Courts apply a balancing test.

Exceptions:
(A) (1) burden on interstate commerce is NARROWLY TAILORED and RATIONALLY RELATED to a LEGITIMATE NON-ECONOMIIC state purpose, (2) NECESSARY because there is NO LESSOR discriminatory alternative available, and (3) purpose outweighs the burden. Government has the burden of proof.

(B) State or Local government is acting as a MARKET PARTICIPANT, which ALLOWS them to favor its citizens over Out of Towners. Market participant means when the state is not acting within its regulating role, but is acting like an owner or operator of a business. It can then prefer its own citizens in receiving gov benefits or ONLY sell the resources IT OWNS to local citizens, HOWEVER, once the resource is sold, the STATE CAN NOT CONTROL what happens to the resource after that.

(C) congress passes a law allowing the state or local government to regulate however they wish

(D) State/Local gov favors traditional public functions like the City’s trash/waste services over an outside service

MBE TIP:
Federal Law = Commerce Clause
State and local Law = Negative Dormant Commerce Clause

MBE TIP: issue spot by looking for local gov protecting locals over out of towners that live outside the border of the state. typically many laws are found to be MORE unduly burdensome and outweigh the purpose

MBE TIP: Dormant Commerce Clause vs. Equal Protection answer choice; the stronger argument will be DCC because it requires balancing

Rationally related to a Legitamate purpose Example: CA prohibits importing live bait fish because parasites could have a detrimental effect on its own fish population and preserving CA’s natural resources sufficiently justifies the restriction.

Market Participant Example: San Diego owns orange fields. San diego is NOW a market participant trying to sell its OWN resource of oranges. San Diego CAN choose to ONLY sell its Oranges to San Diegans. HOWEVER, San Diego can NOT contractually require the San Diegans that purchase the oranges to do anything after the purchase. Like you MUST process the orange juice in San Diego before you sell it to Escondido. They CAN give a discount on the oranges if the buyer is willing to process the juice in San Diego.

Question 58

Incorporation Doctrine

Answer 58

The bill of rights (first 10 amendments) at first was ONLY applicable to the federal government. Through the incorporation doctine, most of the amendments are now applicable to the states, except for:
3 = no quartering soldiers
5 = indictment by grand jury
7 = jury trial in civil case

The 14th amendment of equal protection is incorporated in the 5th amendment, making it applicable to the federal government.

Question 59

Scope of Congress power

Answer 59

13th amendment = Congress can enforce laws to PROHIBIT slavery, involuntary servitude, (forcing labor by threat or legal coercian), or racilly discriminatory action by ANYONE, government or private person, meaning no state action is involved for them to be able to regulate it.

14th amendment= Congress can enforce laws to PREVENT PUBLIC STATE ACTION from depriving a person of life, liberty, or property without due process and equal protection of the law. Section 5 of the 14th amendment, gives congress the power to adopt or remedy narrowly tailored appropriate laws to enforce these rights, but they can NOT expand or create new rights.
**Commerce Clause **= gives congress the powers when it comes to PRIVATE and public discrimination in activites that reasonably have a substantial effect on interstate commerce

15th amendment = Congress can pass ANY LAW to prevent local, state, and federal gov from denying a citizen the right to VOTE due to RACE/COLOR

MBE TIP: 1 QUESTION on EVERY EXAM will test you on congress passing a law
5th amendment = federal law
14th amendment = state law

MBE TIP: 13th amendment -racial discrimination- No State Action needed

MBE TIP: 15th amendment: Racial + Voting

Question 60

First Amendment Right to Freedom of Speech

Answer 60

The first amendment guarentees the freedom of speech. BUT it does NOT provide the freedom to say whatever they want, whenever they want to, and wherever they want to say it.

In most cases, the GOV can regulate the content of speech if the regulation is necessary to achieve a compelling state interest.

However, the gov is a little more freer in regulating the time, place, and manner of the speech. The standard used to test the reasonableness depends on the type of the forum involved.
- public forum or designated public forum
- limited public forum or non-public forum

Question 61

Delgation of Legislative Powers

Answer 61

Improper Delegation of power:
—> Legislative authority: constitution requires ONLY congress to enact law and can NOT delegate this duty

—> Regulatory authority: congress CAN delegate its REGULATORY powers to other branchs and commitees if there are intelligible principles that govern the exercise of that power which includes the policy purpose, agency to carry it out, scope of the authority. These commitees are NOT allowed to change laws or overturn execuetive decisions.

—> Federal Property: delegate rule making power over federal property and agencies

MBE TIP: if you see a hypo that says congress is giving a power to some other agency that is allowed as long as they give intelligble principles that govern the exercise of that power

MBE TIP: if you see a hypo where congress is conditioning money, the answer choice should NOT otherwise that is wrong answer
Wrong Answer: Congress can place ANY condition they want on spending

Question 62

Principals of Federalism

Answer 62

Although, the FEDERAL gov can NOT force states to comply with their regulations, States are NOT immune from federal regulation and the principles of federalism are NOT violated when that regulation applies to both states and private actors equally, without specifically targeting one or the other

Question 63

Appointment Power

Answer 63

• Under the necessary and proper clause, Congress has the power to CREATE new boards to carry out the execution of their enumerated powers within the constitution.
• Under the appointment power, ONLY the president has the power to appoint the higher executive officers that will govern this board with the advice and consent of the senate (extends to ambassadors as well) when the agency or commission has the power to make rules or power to adopt/enforce the laws
• the ONLY time congress CAN appoint people is when the officers are ONLY exercising INVESTIGATIVE or INFORMATIVE power, NOT any rule making
• Congress = power to appoint INFERIOR officers that are UNDER an ESTABLISHED federal agency and They can also give this power to the president, courts, or the head of the department.

**Termination **
- under the seperation of powers, if congress has created a new agency that has rule making or law enforcing power then they can NOT limit the Presidents power to fire the HEAD PRINCIPAL of the agency, whose only boss is the president. The president is free to fire this person at will.

Question 64

Which amendments Prohibit State action vs. Federal action with a persons rights to due process and equal protection?

Answer 64

State = applied to the states through 14th amendment

Federal = applied to the federal gov through the 5th amendment

Private persons = no prohibition against them