MBE Topics

Question 1

Disparate Impact

Answer 1

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 2

Strict Scrutiny

Answer 2

The law must be necessary to achieve a compelling state interest.

Question 3

Intermediate Scrutiny

Answer 3

The law must be substantially related to an important governmental interest.

Question 4

Rational Basis Review

Answer 4

The law must be rationally related to a legitimate state interest.

Question 5

Classifications Based On Alienage

Answer 5

A classification based on alienage is subject to a different standard depending on whether the action is taken by the state or by the federal government.

Courts will generally apply the strict scrutiny test and strike down state-based laws that discriminate against LPRs for lack of US citizenship.

In contrast, Congress has plenary power over immigrants under Article I. A federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable.

Question 6

Judicial Immunity

Answer 6

A judge is absolutely immune from civil liability for judicial acts, including grave procedural errors. The judge is not immune, however, to lawsuits regarding non-judicial activities.

Question 7

Due Process of Employees

Answer 7

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. A formal pre-termination hearing is not required, if there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing.

Question 8

Restrictions on the Right of the Media to Publish

Answer 8

Restrictions on the right of the media to publish about matters of public concern and the right of the public to receive such information may only be restricted by governmental action that is narrowly tailored to further a compelling government interest. If there are less restrictive means of accomplishing the government objectives, those less restrictive means should be used.

Question 9

Taking by Regulation

Answer 9

When a regulation results in a permanent and total loss of a property’s economic value, a taking has occurred.

A regulation restricting property use need not advance a legitimate governmental interest to be valid. Additionally, aesthetic concern can constitute a legitimate governmental interest. Physical occupation of property is not necessary for a taking to exist. A regulation resulting in a permanent total loss of the property’s economic value is sufficient.

The issue of the amount of compensation to which a property owner is entitled is separate from the issue of whether the governmental action has resulted in a taking.

Question 10

First Amendment Freedom to Form or Participate in Any Group

Answer 10

The First Amendment’s freedom of association generally protects the right to form or participate in any group, club, or other organization. The government may justifiably infringe on the right of association to advance a compelling state interest, such as preventing discrimination or subversive activities designed to undermine the democratic process. A person may only be punished or deprived of public employment based on their political affiliation if that individual (1) is an active member of a subversive organization, (2) has knowledge of the organization’s illegal activities, and (3) has a specific intent to further those illegal objectives.

Question 11

Ministerial Exception

Answer 11

The ministerial exception grounded in the First Amendment Religious Clauses that bars 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 12

Time, Place and Manner Restrictions

Answer 12

The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: (1) are content-neutral as to both subject matter and viewpoint, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication of the information.

Question 13

Types of Public Forums

Answer 13

A designated public forum is one that hasn’t historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums.

A traditional public forum is one that has historically been used for speech-related activities.

Question 14

Voting by Felons

Answer 14

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

Question 15

Eleventh Amendment

Answer 15

The 11th 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 16

Younger Doctrine

Answer 16

Under the Younger doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute.

Question 17

Standing

Answer 17

To have standing, a plaintiff must establish (1) a particularized injury, which must have actually occurred or be imminent; (2) that defendant caused this injury; and (3) that the relief requested is likely to redress the injury.

While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, but must be actual and imminent.

Question 18

Enclave Clause

Answer 18

Under Article I, Section 8, Clause 17 of the US 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 19

Export Taxation Clause

Answer 19

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 prohibited.

Question 20

Full Faith and Credit Clause

Answer 20

The Full Faith and Credit Clause of Article IV, Section 1 provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. To be given full faith and credit, a decision must meet three requirements: (1) the court that rendered the judgment must have had jx over the parties and the subject matter; (2) the judgment must have been on the merits rather than on a procedural issue; and (3) the judgment must be final.

Question 21

Affirmative Action

Answer 21

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 22

Seizure of Real Property

Answer 22

Generally, the government is required to provide the owner of real property with notice and a hearing prior to seizure of the property pursuant to a forfeiture statute.

Question 23

General Welfare Clause

Answer 23

The General Welfare Clause of Article I, Section 8 of the United States Constitution gives Congress the power to spend for the general welfare, i.e., any public purpose, not just to pursue its other enumerated powers.

Question 24

Non-Delegation Doctrine

Answer 24

Because Congress is vested by Article I with “all legislative powers,” it may not delegate that power to any other branch of government. However, delegation of some of Congress’ authority to the executive branch has consistently been held constitutional, so long as Congress specifies an “intelligible principle” to guide the delegate.

Question 25

Taxes of Federal Government

Answer 25

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

Question 26

21st Amendment

Answer 26

In addition to repealing prohibition, the 21st Amendment specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state.

This amendment has been interpreted as giving a state the authority to regulate or outright ban the distribution and sale of alcoholic beverages within the state.

Question 27

Elections Clause

Answer 27

The Elections Clause explicitly empowers Congress to override state laws concerning federal elections.

Congress does not have blanket authority to override a state election law that applies to elections for state offices.

Question 28

Dormant Commerce Clause

Answer 28

The Dormant Commerce Clause limits the power of states to legislate in ways that impact interstate commerce. 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 (1) discriminate against out-of-state commerce, (2) unduly burden interstate commerce, or (3) regulate extraterritorial (wholly out-of-state) activity.

Question 29

Citizenship Clause

Answer 29

The protection of national citizenship in Clause I of the 14th Amendment prevents Congress from taking away a person’s citizenship, unless that citizenship was obtained by fraud or in bad faith.

Question 30

Right to Discriminate

Answer 30

Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause.

Question 31

Second Amendment

Answer 31

The 2nd Amendment guarantees an individual’s right to possess a firearm unconnected to service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home, but this right is not unlimited. Federal and state governments may impose conditions and qualifications on the commercial sale of arms, and my prohibit the possession of firearms by felons and folx who are mentally ill.

Question 32

The Property Clause

Answer 32

The Property Clause of Article IV, Section 3 states, “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 US and to make incidental rules regarding its use,
but also the power to protect the property

Question 33

The Supremacy Clause

Answer 33

The Supremacy Clause of Article VI provides that the “Constitution, and the laws of the United States” are the “supreme law of the land.” Any state constitutional provision or law that directly or indirectly conflict with a federal law, including federal regulations, is void under this clause.