MBE Conlaw

Question 1

11th AMD

Answer 1

The Eleventh Amendment prohibits an action in federal court by a citizen of one state against another state when the basis for the action is the violation of state law.

Question 2

Standing requirement

Answer 2

1. particularized injury - actually occurred or imminent
2. D caused injury
3. relief requested likely to redress the injry

Question 3

Export Taxation Clause, Art I, Sec 9 of the USCTT

Answer 3

Congress may not tax goods exported to foreign countries. Under the Export Taxation Clause, a tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited.

Question 4

Militia Clause

Answer 4

National Guard units are under the dual control of the federal and state governments. Under the Militia Clauses (Art. I, Sec. 8, Cl. 15, 16), Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state.

Question 5

Federal Alienage Classification

Answer 5

Congress has plenary power over aliens under Article I, and the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. Therefore, a federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable.

Question 6

Enclave Clause

Answer 6

Under Article I, Section 8, Clause 17 of the U.S. Constitution, also known as the Enclave Clause, Congress has the general police and regulatory powers over the District of Columbia that a state enjoys over persons and things within its boundaries. Among those powers is the power to tax or not to tax income earned within its boundaries.

Question 7

Anti Commandeering

Answer 7

Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly. In this case, the provision of the new law required the assistance of state health officials in conducting background checks. Because the provision of the federal law required state officials’ aid in administering the regulatory program, it is unconstitutional.

Question 8

Congress + power to regulate int’l commerce?

Answer 8

Congress has the power to regulate international commerce. The tariff in question is a valid exercise of this power.

Question 9

Public employee + entitlement? what kind of due process required?

Answer 9

A public employee who may be discharged only for cause has a property interest in her job and therefore is generally entitled to notice of termination and a pre-termination opportunity to respond unless there is a significant reason for the employee’s immediate removal.

Question 10

Remedial statute. Standard of review?

Answer 10

Rational basis

Question 11

Ex post facto law

Answer 11

that retroactively makes criminal conduct that was not criminal when performed, increases the punishment for crimes already committed, or changes the rules of procedure in force at the time an alleged crime was committed in a way substantially disadvantageous to the accused.

Question 12

Voting, a fundamental right? restriction?

Answer 12

Y

As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.

Question 13

Right to family

Answer 13

A fund right

Question 14

Facially neutral + Disparate impact law

What is needed to show discrimination?

Answer 14

A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause.

Question 15

Programs that dicriminate based on race

Affirmative action program to remedy past wrongs

Answer 15

Programs that discriminate based on race, even if they favor racial or ethnic minorities, are subject to strict scrutiny; and for a governmental affirmative action program based on race to survive, the relevant governmental entity must show more than a history of societal discrimination. The government—whether federal, state, or local—must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects

Question 16

Voting district drawing + race as a predominant factor

Answer 16

Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. Note that the district may be able to pass the strict scrutiny test if it can be shown that the district was drawn in compliance with federal Voting Rights Act, but the call of the question only asks whether strict scrutiny should apply.

Question 17

What is taking?

is physical occupancy necessary?

Answer 17

When a regulation results in a permanent and total loss of a property’s economic value, a taking has occurred. In this case, the city ordinance prohibits any person from erecting permanent structures on the island.

Question 18

Bill of attainder

Answer 18

A bill of attainder is an act of a legislature declaring a person, or a group of persons, guilty of some crime, and punishing them, often without a trial.

Question 19

Ministerial exception to the First amendment

Answer 19

The ministerial exception furthers the purposes of the First Amendment free exercise and establishment clauses by barring legal claims against church bodies by their employees who carry out religious functions.

In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.

Question 20

Deprivation of public employment due to political affiliation. requirements?

Answer 20

A person may only be punished or deprived of public employment based on their political affiliation if that individual (i) is an active member of a subversive organization, (ii) has knowledge of the organization’s illegal activities, and (iii) has a specific intent to further those illegal objectives.

Question 21

Content-based attack! what would be the question that you should ask?

Answer 21

When you see a speech restriction that would require you to actually read or listen to the speech to determine whether the restriction applies (e.g., “signs about events” instead of just “yard signs”), you should be thinking of content-based regulations.

Question 22

conditions imposed on states by Congress in the exercise of its spending power must be set out ——-

Answer 22

unambiguously.

Question 23

The Property Clause of Article IV, Section 3

Answer 23

“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This power includes not only the power to dispose of property owned by the United States and to make incidental rules regarding its use, but also the power to protect the property. Although a state generally has the same right as any property owner to construct a fence on its property, this right must give way to federal regulation.

Question 24

he Tenth Amendment

Answer 24

the Tenth Amendment only reserves for the states those powers not already given to the federal government. The power exercised here by Congress was granted to the federal government by the Property Clause of Article IV, Section 3 of the U.S. Constitution.

Question 25

The protection of national citizenship

Answer 25

prevents Congress from taking away a person’s citizenship, unless that citizenship was obtained by fraud or in bad faith.

Question 26

The Elections Clause

Answer 26

The Elections Clause explicitly empowers Congress to override state laws concerning federal elections. Here, the legislation attempts to regulate the federal election process by limiting voting times and polling sites as applied to federal elections, and Congress has the power to override such legislation.

Question 27

Appointment of officers

A new exec dept +

headed by a commission headed, nominated by the pres with senate approval.

Lower level committee supervised by a senate appointee. Congress permitted the Pres to appoint the members. permissible?

Answer 27

Article II, Section 2 authorizes the President, with the advice and consent of the Senate, to appoint all “officers of the United States,” including ambassadors and Justices of the Supreme Court. Congress may, however, delegate the appointment of “inferior” officials to the President alone (i.e., without Senate approval), the heads of executive departments, or the courts. “Inferior” officials are those supervised by Senate-confirmed appointees

Here, Congress can delegate to the President the power to appoint these inferior officials without Senate approval because they will be supervised by a Senate-confirmed appointee.

Question 28

Congress made a statute

Committee. Statute gives the committee Authority to issue and enforce rules.
“STATUTE PROVIDED THAT” Committee members appointed by the Agency within DOInterior. Unconstitutional?

Answer 28

Yes.

Congress cannot, through statute, give power it does not possess.

“OFFICERS of the US” must be appointed by the President

Question 29

a political question arises when

Answer 29

when the Constitution has assigned decision making on this subject to a different branch of the government, or the matter is inherently not one that the judiciary can decide.

Question 30

The President represents and acts for the United States in day-to-day international affairs. In addition to appointing and receiving ambassadors, the President has the exclusive power to—-

Answer 30

to recognize a foreign government.

Question 31

legislatively veto

congress statute + Delegated proper through intelligible + Requires Secretary-evaluated fee subject to House resolution.

Answer 31

to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

(Arises when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution)

Question 32

State taxation on fed govt

Answer 32

The federal government and its instrumentalities (such as a national bank chartered by the federal government) are immune from taxation by the states.

Question 33

The “General Welfare” Clause of Article I, Section 8

Answer 33

This clause gives Congress the power to spend for the general welfare i.e., any public purpose—not just to pursue its other enumerated powers.

Question 34

Dormant Commerce Clause

Answer 34

If Congress has not enacted legislation in a particular area of interstate commerce, the states are free to regulate so long as the state or local statutes do not

(i) discriminate against out-of-state commerce,
(ii) unduly burden interstate commerce, or
(iii) regulate extraterritorial (wholly out-of-state) activity.

Question 35

Dormant Commerce Clause vs. EPC

Answer 35

While Congress may allow a state to discriminate against out-of-state commerce in a manner that otherwise would violate the Dormant Commerce Clause, Congress may not absolve states from compliance with the Equal Protection Clause.

Question 36

The Twenty-First Amendment

Answer 36

specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state.

Question 37

10th AMD

Answer 37

The Tenth Amendment generally reserves to the states the powers not delegated to the federal government by the Constitution or prohibited to the states.

Question 38

Zoning statute - standard and what result?

Answer 38

Most legislation related to zoning is reviewed under the rational basis standard, and a law meets that standard if it is rationally related to a legitimate state interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. I

Question 39

Write-in candidates

Answer 39

A state may ban all write-in candidates in both primary and general elections, at least when the state provides other reasonable means by which a candidate can get on the ballot.

Question 40

Right to education

Answer 40

While parents do enjoy a fundamental right to make decisions regarding the care, custody, and control of one’s children, including the right to privately educate one’s child outside the public school system, that right is subject to reasonable educational standards imposed by the state.

Question 41

Disparate impact sufficient?

Answer 41

No,To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government.

Question 42

Alien

Answer 42

a state law that discriminates against aliens is subject to strict scrutiny under the Equal Protection Clause and will be struck down.

Question 43

The Free Exercise Clause

Answer 43

The Free Exercise Clause protects a religious organization’s right to shape its own faith and mission through its choice of ministers. The Establishment Clause prevents the government from imposing its choice of a minister on the organization. Together, these clauses create a ministerial exception that operates as an affirmative defense to an employment discrimination claim brought by a minister. Answer choice A is incorrect because the First Amendment Free Exercise Clause ensures that a religious organization has the authority to control who serves as a minister; it does not only protect the organization’s decision when it is made for a religious reason.

Question 44

blanket primary system + Partys right?

Answer 44

A state may institute a blanket primary system in which all voters participate. However, the First Amendment freedom of expression and association prohibit states from interfering with a political party’s endorsement of a candidate or selection of a candidate. Because this system does not appear to do either one, it is likely constitutional.

Question 45

Lemon Teste

Answer 45

SEX

Secular State interest
Effect neither advances or prohibits religion
eXessive entanglement nope

Question 46

Symbolic speech

Answer 46

1. Important Gov interest
2. Suppressio independent of Gov Int
3. Leaving other channels open