LA BAR EXAM NON-CODE TOPIC 2 CONSTITUTIONAL LAW

Question 1

PART 1: POWERS OF THE FEDERAL GOVERNMENT

I. The Judicial Power - A. Article III

Answer 1

The United States Constitution creates three branches of government and divides powers among the three branches. Broadly, the power to hear cases is vested in the judiciary. The power to make laws is vested in the legislature, and the power to enforce laws and deal with foreign countries is vested in the executive branch. Be wary of action by one branch that encroaches on the powers of another branch. Such action is said to violate the Constitution’s separation of powers.

Federal judicial power extends to cases involving:
1. Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and
2. Disputes between states, states and foreign citizens, and citizens of diverse citizenship.

Question 2

PART 1: POWERS OF THE FEDERAL GOVERNMENT

I. The Judicial Power - B. The Power of Judicial Review

Answer 2

The Supreme Court may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause. The separation of powers doctrine prevents the legislature from interfering with the final judgments of federal courts. However, Congress may change federal statutes and direct federal courts to apply those changes in all cases in which a final judgment has not been rendered.

Question 3

PART 1: POWERS OF THE FEDERAL GOVERNMENT

I. The Judicial Power - C. Jurisdiction of the Supreme Court

Answer 3

1. Original Jurisdiction
   The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party. Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
2. Appellate Jurisdiction
   The Supreme Court has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulation.

Question 4

PART 1: POWERS OF THE FEDERAL GOVERNMENT

I. The Judicial Power - D. Doctrine of “Strict Necessity”

Answer 4

Whether a case is “justiciable” (i.e., a federal court may address it) depends on whether there is a “case or controversy.” In addition to the “case or controversy” requirement, there are other limitations on federal court jurisdiction.

There must be specific present harm or threat of specific future harm. Federal courts can hear actions for declaratory relief if there is an actual dispute between parties having adverse legal interests. Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests. However, the federal courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.

Ripeness: A plaintiff is not entitled to review of a statute or regulation before its enforcement (i.e., may not obtain a declaratory judgment) unless the plaintiff will suffer some harm or immediate threat of harm.

Mootness: A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot.
a. Exception
Controversies capable of repetition, but evading review, are not moot. Examples: Issues concerning events of short duration (e.g., pregnancy) or a defendant who voluntarily stops the offending practice but is free to resume.
b. Class Actions
A class representative may continue to pursue a class action after the representative’s controversy has become moot if claims of other class members are still viable.

Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after they have been resolved.

Standing: A person must have a concrete stake in the outcome of a case at all stages of litigation, including on appeal.
a.
Components
1) Injury in Fact
To have standing, a person must be able to assert an injury in fact, which requires both: (i) particularized injury-an injury that affects the plaintiff in a personal and individual way; and (il) a concrete injury-one that exists in fact. It is not enough to show merely that a federal statute or constitutional provision has been violated (and that we all suffer when that happens). The injury need not be economic.
2) Causation
There must be a causal connection between the injury and the conduct complained of.
3) Redressability
A decision in the litigant’s favor must be capable of eliminating her grievance.

Remember that standing just allows the plaintiff to get into court. Thus, a successful ruling on the standing issue does not mean that the plaintiff wins his suit; it merely means that he gets an opportunity to try it.

b. Common Standing Issues
1) Standing to Assert Rights of Others
Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a third party if:
a) It is difficult for the third party to assert her own rights (e.g., an association may attack a law requiring disclosure of membership lists, because members cannot attack the law without disclosing their identities); or
b) A special relationship exists between the claimant and the third party (e.g., a doctor can assert a patient’s rights in challenging an abortion restriction).
2) Standing of Organizations
An organization has standing if (i) there is an injury in fact to members that gives them a right to sue on their own behalf, (ji) the injury is related to the organization’s pur-pose, and (ili) individual member participation in the lawsuit is not required.
3) No Citizenship Standing
People have no standing merely as “citizens” to claim that government action violates federal law or the Constitution. The injury is too generalized. Compare: A person may have standing to allege that federal action violates the Tenth Amendment by interfering with powers reserved to the states, as long as the person has a redress-able injury in fact.
4) Taxpayer Standing Requisites
A taxpayer has standing to litigate her tax bill, but a taxpayer generally has no standing to challenge government expenditures, because the taxpayer’s interest is too remote. Similarly, a taxpayer, as such, has no standing to challenge tax credits. Exception: Suits attacking congressional spending measures on First Amendment Establishment Clause grounds (e.g., congressionally approved federal expenditures to aid parochial schools).

For a taxpayer to have standing, Congress’s spending power must be involved. Thus, for example, there is no standing to challenge federal government grants of surplus property to religious groups or expenditures of general executive branch funds.

5. Adequate and Independent State Grounds
   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.
   When the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
6. Abstention
   a. Unsettled Question of State Law
   A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.
   b. Pending State Proceedings
   Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.
7. Eleventh Amendment Limits on Federal Courts
   The Eleventh Amendment prohibits federal courts from hearing a private party’s or foreign government’s claims against a state government.
   a. What Is Barred?
   The prohibition extends to actions in which the state is named as a party or in which the state will have to pay retroactive damages. Similarly, the Supreme Court has held that the doctrine of sovereign immunity bars suits against a state government in state court, even on federal claims, unless the defendant state consents.
   b. What Is Not Barred?
   The prohibition does not extend to actions against local governments, actions by the United States or other states, or proceedings in federal bankruptcy courts.

c. Exceptions
The following actions can be brought against state officers in federal court despite the Eleventh Amendment: (i) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state; and (i) actions for damage against an officer personally.

Question 5

PART 1: POWERS OF THE FEDERAL GOVERNMENT

II. Legislative Power - A. Specific Powers

Answer 5

The federal government has limited powers. Every exercise of federal power must be traced to the Constitution.

Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government.

1. Necessary and Proper “Power”
   Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government.

The Necessary and Proper Clause standing alone cannot support federal law. It must work in conjunction with another federal power. Thus, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress’s power to enact legislation necessary and proper will be incorrect unless another federal power is linked to it in the question.

2. Taxing Power

Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed.

3. Spending Power

Congress may spend to “provide for the common defense and general welfare.” Spending may be for any public purpose.

The federal government can tax and spend for the general welfare; it cannot directly legislate for it. Thus, nonspending regulations cannot be supported by the General Welfare Clause.

Also recall that although the power to spend for the general welfare is broad (any public purpose), it is still limited by the Bill of Rights and other constitutional provisions.

4. Commerce Power

Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either:

(i) Regulate the channels of interstate commerce;
(ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce: or
(iii) Regulate activities that have a substantial effect on interstate commerce.
a. Intrastate Activity
When Congress attempts to regulate intrastate activity under the third prong, above, the Court will uphold the regulation if it is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption) and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. However, if the regulated intrastate activity is noncommercial and noneconomic (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.

5. War and Related Powers
   The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
   a. Economic Regulation
   Economic regulation during war and in the postwar period to remedy wartime disruptions has been upheld.
6. Investigatory Power
   The power of Congress to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house.
7. Property Power
   Congress has the power to dispose of and make rules for territories and other properties of the United States. While there is no express limitation on Congress’s power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the Constitution.
8. No Federal Police Power
   Congress has no general police power. However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capital and its property power).

If an answer choice attempts to support federal action on the basis of the police power (e.g., “Congress can constitutionally act under the police power” or “the action is valid under the federal police power”), see whether the facts state that the action pertains to the District of Columbia or other federal possessions. If not, it is a wrong choice.

9. Bankruptcy Power
   Congress’s power to establish uniform rules for bankruptcy is nonexclusive; states may legislate in the field as long as their laws do not conflict with federal law.
10. Power Over Citizenship
    Congress may establish uniform rules of naturalization. This gives Congress plenary power over aliens.
    a. Exclusion of Aliens
    Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs. However, resident aliens are entitled to notice and a hearing before they can be deported
    b. Naturalization and Denaturalization
    Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen -native-born or naturalized - without his consent.

Question 6

PART 1: POWERS OF THE FEDERAL GOVERNMENT

II. Legislative Power - B. Delegation of Legislative Powers

Answer 6

Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (e.g., powers to declare war, impeach). A general standard will usually suffice as an intelligible principle.

1. Separation of Powers
   While Congress has broad power to delegate, the separation of powers doctrine restricts Congress from keeping certain controls over certain delegates. For example, Congress cannot give itself the power to remove an officer of the executive branch by any means other than impeachment (e.g., if Congress delegates rulemaking power to an executive branch agency, such as the FCC, Congress may not retain the power to fire the agency head). Similarly, Congress may not give a government employee who is subject to removal by Congress (other than by impeachment) purely executive powers.
2. Claims of Broad Delegation on Major Questions
   When an agency claims to be exercising broad power to adopt regulations that have extraordinary economic and political significance (“major questions”), the Court will look at both:
   Whether the agency has historically asserted such power AND
   Whether there is clear congressional authorization for the claimed power
   In major questions cases, modest, vague, or subtle language can’t support a broad delegation of power.

Question 7

PART 1: POWERS OF THE FEDERAL GOVERNMENT

II. Legislative Power - C. Separation of Powers - The Requirement of Bicameralism and Presentment

Answer 7

To pass a law, Congress must use bicameralism (passage of a bill by both houses of Congress) followed by presentment to the President for signature or veto. Attempts by Congress to create laws or control the enforcement of laws without bicameralism and presentment are invalid.

Question 8

PART 1: POWERS OF THE FEDERAL GOVERNMENT

II. Legislative Power - D. Removal of Members of Congress

Answer 8

Each house of Congress may expel its own members with the concurrence of two-thirds of the members of that house. Each house has the power to determine its own rules for punishing its members for disorderly behavior. Under the separation of powers doctrine, members of the other federal branches have no power to remove members of Congress except by impeachment.

Question 9

PART 1: POWERS OF THE FEDERAL GOVERNMENT

III. The Executive Power - A. Domestic Powers

Answer 9

1. Appointment and Removal

a. Appointment Powers

The President appoints ambassadors, justices of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for in the Constitution, with advice and consent of the Senate. Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers.

b. Removal of Appointees

1) By President

The President can remove high level, purely executive officers (e.g., Cabinet members) at will, without any interference by Congress. Congress also cannot restrict the President from removing the head of an independent agency if that person is the sole director and has significant executive power. However, Congress may provide statutory limitations (e.g., removal only for good cause) on the President’s power to remove all other executive appointees.

2) By Congress
Congress may remove executive officers only through the impeachment process.

2. Pardons

The President may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power cannot be limited by Congress.

3. Veto Power

If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is overridden by a two-thirds vote of each house.

a. Pocket Veto

The President has 10 days to exercise the 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.

b. Line Item Veto Unconstitutional
The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part (through a line item veto) and approve other parts.

4. Power as Chief Executive
   The President’s powers over internal affairs are unsettled. Clearly the President has some power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders. Perhaps the best guide is as follows:
   а.
   If the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
   b.
   If the President acts where Congress is silent, his action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks; and
   C.
   If the President acts against the express will of Congress, he has little authority, and his action likely is invalid (e.g., the President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent).

Question 10

PART 1: POWERS OF THE FEDERAL GOVERNMENT

III. The Executive Power - B. Power Over External Affairs

Answer 10

1. War
   The President has no power to declare war but may act militarily in actual hostilities against the United States without a congressional declaration of war. However, Congress, under its power to enact a military appropriation every two years, may limit the President.
2. Foreign Relations
   The President has paramount power to represent the United States in day-today foreign relations.
3. Treaty Power
   The President has the power to enter into treaties with the consent of two-thirds of the Senate.
   a. Supreme Law
   Like other federal law, treaties are the “supreme law of the land” if they are self-executing (i.e., effective without any implementation by Congress). State laws that conflict with a self-executing treaty are invalid. Note that the President generally does not have any independent power to issue a memorandum ordering compliance with a treaty that is not self-executing.
   b. Conflict with Federal Laws
   A conflict between a congressional act and a valid treaty is resolved by order of adoption: the last in time prevails.
   c. Conflict with Constitution
   Treaties are not co-equal with the Constitution; a treaty may not be inconsistent with the Constitution.

Treaties are subject to constitutional limits. Thus, no treaty (or executive agreement) can confer on Congress authority to act in a manner inconsistent with any specific provision of the Constitution.

4. Executive Agreements
   consent of the Senate.
   Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the
   a. Conflict with State Laws
   If a state law conflicts with an executive agreement, the agreement prevails.
   b. Conflict with Federal Laws
   If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.

Question 11

PART 1: POWERS OF THE FEDERAL GOVERNMENT

III. The Executive Power - C. Impeachment

Answer 11

The President. Vice President, and all civil officers of the United States are subiect to impeachment (the bringing of charges). Grounds include treason, bribery, high crimes, and mis-demeanors. A majority vote in the House is necessary to invoke the charges of impeachment, and a two-thirds vote in the Senate is necessary to convict and remove from office.

Question 12

PART 2: THE FEDERAL SYSTEM

IV. Relative Spheres of Federal and State Powers - A. Exclusive Federal Powers

Answer 12

1. Power of States Expressly Limited

Some powers are exclusively federal because the Constitution limits or prohibits the use of the power by states (e.g., treaty power, coinage of money).

2. Inherent Federal Powers

Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (e.g., declaration of war, federal citizenship).

Question 13

PART 2: THE FEDERAL SYSTEM

IV. Relative Spheres of Federal and State Powers - B. Exclusive State Powers

Answer 13

All powers not delegated to the federal government are reserved to the states. Note, however, that federal powers are given an expansive interpretation, and thus little state power is exclusive.

Question 14

PART 2: THE FEDERAL SYSTEM

IV. Relative Spheres of Federal and State Powers - C. Concurrent Power - Supremacy Clause and Preemption

Answer 14

Because of the Supremacy Clause, a federal law may supersede or preempt local laws.

1. Express Preemption

A federal law may expressly provide that the states may not adopt laws concerning the subject matter of federal legislation. Express preemption clauses will be narrowly construed.

2. Implied Preemption

a. Conflict Between State and Federal Law Requirements
If a state law conflicts with federal law requirements, the state law will be held to be impliedly preempted.

b. State Prevents Achievement of Federal Objective
If a state or local law prevents achievement of a federal objective, it will also be held to be impliedly preempted. This is true even if the state law was enacted for some valid purpose and not to frustrate the federal law (e.g., state law providing for suspension of driver’s license of persons who fail to pay off an auto accident case judgment, regardless of the person’s discharge in bankruptcy, is invalid).

c. Field Preemption
A valid federal statute or regulation may impliedly “occupy” the entire field, thus precluding any state or local regulation even if the state or local regulation is nonconflicting. The courts will look at the regulatory scheme to deduce whether Congress intended to preempt the entire field (e.g., if federal laws are comprehensive or an agency was created to oversee the area, preemption may be found).

3. Presumption Against Preemption
   In all preemption cases, but especially in cases involving a field traditionally within the power of the states (e.g., regulations involving health, safety, or welfare), courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.

Question 15

PART 2: THE FEDERAL SYSTEM

IV. Relative Spheres of Federal and State Powers - D. Absence of Federal and State Powers

Answer 15

Some powers are denied to both Congress and the states. For example, the qualifications for serving in Congress are set by the Constitution and cannot be altered by Congress or the states.

Question 16

PART 2: THE FEDERAL SYSTEM

IV. Relative Spheres of Federal and State Powers - E. Full Faith and Credit Clause

Answer 16

By virtue of the Full Faith and Credit Clause, if a judgment is entitled to full faith and credit, it must be recognized in sister states (i.e., a party who loses a case in New York generally may not relitigate it in New Jersey; the New Jersey courts are bound by the New York ruling). This Clause applies only if: (i) the court that rendered the judgment had jurisdiction over the parties and the subject matter (if the issue of jurisdiction has been litigated in one state, the court’s ruling must be recognized in other states; (ii) the judgment was on the merits; and (i) the judgment is final.

Question 17

PART 2: THE FEDERAL SYSTEM

IV. Relative Spheres of Federal and State Powers - F. Commandeering State Officials

Answer 17

The Supreme Court has held that Congress may not require state executive officials (e.g., the police to enforce federal laws because such a requirement would upset the Constitution’s “dual sovereignty” structure (i.e., both the states and the federal government are sovereigns).

Question 18

PART 2: THE FEDERAL SYSTEM

IV. Relative Spheres of Federal and State Powers - G. State Taxation and Regulation of Federal Government

Answer 18

A state may not directly tax federal instrumentalities without the consent of Congress. However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government (e.g., state income tax on federal employees). States may not regulate the federal government or its agents while performing their federal functions.

Question 19

PART 2: THE FEDERAL SYSTEM

V. Privileges and Immunities Clauses - A. Article IV - Privileges of State Citizenship

Answer 19

The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents.

Note: Corporations and aliens are not protected by this clause. (In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Dormant Commerce Clause, discussed infra.)

1. Only “Fundamental Rights” Protected
   The Interstate Privileges and Immunities Clause of Article IV prohibits discrimination by a state against nonresidents of the state when the discrimination concerns “fundamental rights”-ie., rights relating to important commercial activities (such as pursuit of a livelihood or civil liberties. However, the Clause applies only if the discrimination is intentionally protectionist in nature
2. Substantial Justification Exception
   The state law may be valid if the state has a substantial justification for the different treatment. In effect, the state must show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem.
3. Note-Relationship to Commerce Clause
   Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently. they both have to be considered in analyzing bar exam questions.

Question 20

PART 2: THE FEDERAL SYSTEM

V. Privileges and Immunities Clauses - B. Fourteenth Amendment - Privileges of National Citizenship

Answer 20

States may not deny their citizens the privileges or immunities of national citizenship (e.g., the right to petition Congress for redress of grievances, the right to vote for federal offi-cers, and the right to interstate travel). Corporations are not protected by this Clause.

Question 21

PART 2: THE FEDERAL SYSTEM

V. Privileges and Immunities Clauses - C. Regulation of Foreign Commerce

Answer 21

With a few minor exceptions, the power to regulate foreign commerce lies exclusively with Congress.

Question 22

PART 3: STATE REGULATION OR TAXATION OF COMMERCE

VI. Regulation of Interstate Commerce - A. Regulation of Commerce by Congress

Answer 22

1. Power of Congress to Supersede or Preempt State Regulation
   When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted. (See
   IV.C.3., supra.)
2. Power of Congress to Permit or Prohibit State Regulation
   Congress may permit state regulations that would otherwise violate the Commerce Clause. Likewise, Congress may prohibit state regulations that could otherwise be upheld under the Commerce Clause. Congress may not, however, permit states to violate civil liberties

Question 23

PART 3: STATE REGULATION OR TAXATION OF COMMERCE

VI. Regulation of Interstate Commerce - B. Dormant Commerce Clause - Regulation of Commerce by States

Answer 23

If Congress has not enacted laws regarding the subject, a state or local government under the Commerce Clause may regulate local aspects of interstate commerce. However, there is a presumption under the Commerce Clause that Congress would not want a state to interfere with commerce. This is known as the “Dormant Commerce Clause” or the negative implications of the Commerce Clause. State regulation of commerce will be upheld under the Dormant Commerce Clause if the regulation does not discriminate against or unduly burden interstate commerce.

1. Discriminatory Regulations
   State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid (e.g., Louisiana cannot ban California wines or tax them at a higher rate than local wines).

a. Exception-Important State Interest
A discriminatory state or local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives avail-able. Example: A state could prohibit importation of live bait fish because parasites could have a detrimental effect on its own fish population. However, a state could not prohibit export of live bait fish when no major state interest was involved.
b. Exception-State as “Market Participant”
A state may prefer its own citizens when acting as a market participant (e.g., when buying or selling, hiring labor, or giving subsidies).
c. Favoring Government Performing Traditional Government Functions
The Supreme Court applies a more lenient standard when a law favors government action that involves the performance of a traditional government function (such as waste disposal). Discrimination against interstate commerce in such a case is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism.

Remember that discriminatory laws may also violate the Privileges and Immunities Clause of Article IV (see chart below) or the Equal Protection
Clause.

2. Nondiscriminatory Laws-Balancing Test
   If a nondiscriminatory state law (i.e., a law that treats local and out-of-state interests alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available. Example: An low statute banning trucks over 60 feet was invalid because the state showed no significant evidence of increased safety and the burden on commerce was substantial.

a. State Control of Corporations
A different standard may apply to statutes adopted by the state of incorporation regulating the internal governance of a corporation. Because of the states’ long history of regulating the internal governance of corporations that they create, and because of their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld (e.g., a state may deny voting rights to persons who acquire a controlling interest in a state corporation without approval from other shareholders, despite the impact that this may have on interstate commerce).

*When a bar exam question involves a state regulation that affects the free flow of interstate commerce, you should ask:
Does the question refer to any federal legislation that might (i) supersede the state regulation or preempt the field or (i) authorize state regulation otherwise impermissible?

If neither of these possibilities is dispositive, does the state regulation either discriminate against interstate or out-of-state commerce or place an undue burden on the free flow of interstate commerce? If the regulation is discriminatory, it will be invalid unless (i) it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives, or (ii) the state is a market participant. If the regulation does not discriminate but burdens interstate commerce, it will be invalid if the burden on commerce outweighs the state’s interest.*

Question 24

PART 3: STATE REGULATION OR TAXATION OF COMMERCE

VII. Power of States to Tax Interstate Commerce - A. General Considerations

Answer 24

The same general considerations that apply to state regulation of commerce (see supra) apply to state taxation of commerce.

Congress has complete power to authorize or forbid state taxation that affects interstate commerce.

1. Discriminatory Taxes
   Unless authorized by Congress, state taxes that discriminate against interstate commerce (e.g., tax on out-of-state businesses higher than tax on in-state businesses) violate the Commerce Clause. Note that these taxes may also violate other constitutional provisions (e.g., the Privileges and Immunities Clause of Article IV or the Equal Protection Clause).
2. Nondiscriminator Taxes
   A nondiscriminatory tax will be valid if the following requirements are met:

a. Substantial Nexus
To be valid, the tax must apply to an activity having a substantial nexus to the taxing state; i.e., there must be significant or substantial activity within the taxing state. (Lack of a substantial nexus might also violate the due process requirement of minimum contacts, but substantial nexus requires more in-state connections.)

b. Fair Apportionment
To be valid, the tax must be fairly apportioned according to a rational formula. However, the taxpayer has the burden of proving unfair apportionment. (An unfairly apportioned tax may also violate equal protection.)

c. Fair Relationship
To be valid, the tax must be fairly related to the services or benefits provided by the state.

Question 25

PART 3: STATE REGULATION OR TAXATION OF COMMERCE

VII. Power of States to Tax Interstate Commerce - B. Use Taxes

Answer 25

1. Permissible in Buyer’s State
   Use taxes are imposed on goods purchased outside the state but used within it. They are valid.
2. State May Force Seller to Collect Use Tax
   An interstate seller may be required to collect a use tax if the seller has a sufficient nexus with the taxing state (e.g., maintains offices in the taxing state). Merely soliciting orders by mail and shipping orders into the state is not sufficient.

Question 26

PART 3: STATE REGULATION OR TAXATION OF COMMERCE

VII. Power of States to Tax Interstate Commerce - C. Sales Taxes

Answer 26

Sales taxes are taxes imposed on the seller of goods for sales consummated within the state. They generally do not discriminate against interstate commerce; rather, the issue usually involves whether there is a substantial nexus between the taxpayer and the taxing state or whether the tax is properly apportioned.

Question 27

PART 3: STATE REGULATION OR TAXATION OF COMMERCE

VII. Power of States to Tax Interstate Commerce - D. Ad Valorem Property Taxes

Answer 27

Ad valorem property taxes are based on the assessed value of the property in question.

1. No Tax on Commodities in Course of Interstate Commerce
   Commodities in interstate transit are entirely exempt from state taxation. Interstate transportation begins when the cargo (i) is delivered to an interstate carrier or (ii) actually starts its interstate journey. The interstate shipment usually ends when the cargo reaches its destination; thereafter the goods are subject to local tax.
2. Tax on Instrumentalities Used to Transport Goods Interstate
   The validity of ad valorem property taxes on instrumentalities of commerce (e.g., trucks or airplanes) depends on (i) whether the instrumentality has acquired a “taxable situs” in the taxing state (i.e., whether there are sufficient “contacts” with the taxing state to justify the tax) and (¡i) whether the value of the instrumentality has been properly apportioned according to the amount of the “contacts” with each taxing state.

а. Taxable Situs
An instrumentality has a taxable situs in a state if it receives benefits or protection from the state. (There may be more than one taxable situs.) Example: An airplane was held to have a taxable situs in a state-even though the airline owned no other property in the state- because the airline made 18 regularly scheduled flights daily from a rented depot in the state.

b. Apportionment Requirement
A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state. The tax-paver’s domiciliary state can tax the full value of instrumentalities used in interstate commerce unless the taxpayer can prove that a defined part thereof has acquired a “tax-able situs” elsewhere.

Question 28

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

VIII. Limitations on Power and State Action Requirement - A. Constitutional Restrictions on Power Over Individuals

Answer 28

Note: The Constitution sets the minimum threshold of rights. States generally are free to grant broader rights than those granted by the United States Constitution.

1. Bill of Rights
   By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits federal power. However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states. Exceptions: The most notable exceptions to incorporation are: (i) the Fifth Amendment’s prohibition of criminal trials without a grand jury indictment and (il) the Seventh Amendment’s right to a jury trial in civil cases.
2. Thirteenth Amendment
   The Thirteenth Amendment prohibits slavery and involuntary servitude, which the Court has defined as compulsion of labor through the use or threat of physical or legal coercion.
   Under the Thirteenth Amendment’s Enabling Clause, Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).
3. Fourteenth and Fifteenth Amendments
   The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color. Generally, private conduct is not prohibited by these amend-ments-only where some state action is involved. (Purely private conduct may be prohibited, however, on a separate constitutional basis, such as the Commerce Clause.)

a. Scope of Congressional Power Under Fourteenth Amendment
Section 5 of the Fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Under Section 5, Congress may not expand existing constitutional rights or create new ones- it may only enact laws to prevent or remedy violations of rights already recognized by the courts. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (i.e., narrowly tailored) to solving the identified violation.

4. Commerce Clause
   Under the broadly construed commerce power, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce.

Because almost any activity taken cumulatively might have a substantial effect on interstate commerce, the Commerce Clause is an important basis for civil rights laws.

5. Rights of National Citizenship
   Congress has inherent power to protect rights of citizenship (e.g., rights to interstate travel, assemble, and petition Congress for redress).

Question 29

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

VIII. Limitations on Power and State Action Requirement - B. State Action Requirement

Answer 29

Because the Constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved. Note: This concept applies to government and government officers at all levels- local, state, or federal. Note, however, that state action can be found in actions of seemingly private individuals who (i) perform exclusive public functions or (ji) have significant state involvement.
1. Exclusive Public Functions
Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them.
2. Significant State Involvement-Facilitating Private Action
State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.

On the bar exam. remember that the state must be “significantly involved” in the private entity: mere acquiescence by the state in private conduct is not enough. Also, states are not constitutionally required to outlaw discrimination. They are only forbidden to facilitate, encourage, or authorize it.

Question 30

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

IX. Retroactive Legislation - A. Contract Clause - Impairment of Contract

Answer 30

The Contract Clause limits the ability of states to enact laws that retroactively impair contract rights. It does not affect contracts not yet made.
1. Not Applicable to Federal Government
There is no comparable clause applicable to the federal government, but flagrant contract impairment would violate the Fifth Amendment Due Process Clause.

2. Basic Impairment Rules
   a. Private Contracts-Intermediate Scrutiny
   State legislation that substantially impairs an existing private contract is invalid unless the legislation (i) serves an important and legitimate public interest and (i) is a reasonable and narrowly tailored means of promoting that interest. Example: Imposing a moratorium on mortgage foreclosures during a severe depression did not violate the Contract Clause.
   b. Public Contracts-Stricter Scrutiny
   Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the contract will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.

Question 31

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

IX. Retroactive Legislation - B. Ex Post Facto Laws

Answer 31

The state or federal government may not pass an ex post facto law (i.e., a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity). A statute retroactively alters a law in a substantially prejudicial manner if it: (i) makes criminal an act that was innocent when done; (ii) prescribes greater punishment for an act than was prescribed for the act when it was done; or (iii) reduces the evidence required to convict a person of a crime from what was required when the act was committed. Note that the Due Process Clauses of the Fifth and Fourteenth Amendments similarly prohibit courts from retroactively interpreting criminal laws in an unexpected and indefensible way.

The Ex Post Facto Clauses apply only to criminal cases. Thus, an answer choice that attempts to apply these prohibitions in a civil case (e.g., regarding a denial of a professional license) is wrong.

Question 32

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

IX. Retroactive Legislation - C. Due Process Considerations

Answer 32

If a retroactive law does not violate the Contracts, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the Due Process Clause. If the retroactive law does not relate to a fundamental right. it need only be rationally related to a legitimate government interest.

Question 33

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

X. Procedural Due Process - A. Basic Principle

Answer 33

Government negligence is insufficient to state a procedural due process claim. Instead, there generally must be an intentional or reckless government action.

Question 34

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

X. Procedural Due Process - B. Is Life, Liberty, or Property Being Taken?

Answer 34

1. Liberty
   The term “liberty” is not specifically defined. It includes more than just freedom from bodily restraints (e.g., it includes the right to contract and to engage in gainful employment). A deprivation of liberty occurs if a person:
   a. Loses significant freedom of action; or
   b. Is denied a freedom provided by the Constitution or a statute.
2. Property
   “Property” includes more than personal belongings and realty, but an abstract need or desire for (or a unilateral expectation of) a benefit is not enough. There must be a legitimate claim or “entitlement” to the benefit under state or federal law. Examples of property interests include continued attendance at public school, welfare benefits, and (in some cases) government employment.

At one time, due process protected a “right” but not a “privilege.” This distinction has been rejected by the Court. Thus, an answer that uses that terminology (right versus privilege) should be discarded as a red herring. The proper terminology is “entitlement.”

Question 35

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

X. Procedural Due Process - C. What Type of Process is Required?

Answer 35

The type and extent of required procedures are determined by a three-part balancing test that weighs:
(i)The importance of the interest to the individual; and
(ii) The value of specific procedural safeguards to that interest; against
(iii) The government interest in fiscal and administrative efficiency.
Presumably, fair procedures and an unbiased decision maker will always be required. Notice and chance to respond before termination of the liberty or property interest are usually required.

Question 36

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

X. Procedural Due Process - D. Due Process Rights are Subject to Waiver

Answer 36

As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly.

Question 37

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

X. Procedural Due Process - E. Access to Courts - Indigent Plaintiffs

Answer 37

Government fees (e.g., court filing fees) must be waived when imposition of a fee would deny a fundamental right to the indigent (see infra, for discussion of fundamental rights).
Thus, for example, a marriage license or divorce court filing fee (privacy rights) or filing fee for candidates for electoral office (voting rights) must be waived. However, fees can be imposed when nonfundamental rights are involved (e.g., fees for a bankruptcy discharge or review of welfare termination).

Question 38

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XI. The “Taking” Clause - A. In General

Answer 38

The Fifth Amendment provides that private property may not be taken for public use without just compensation. This rule is applicable to the states via the Fourteenth Amendment.
The Taking Clause is not a source of power for taking, but rather is a limitation. “Taking” includes not only physical appropriations but also some government action that damages property or impairs its use. Property subject to the Taking Clause includes personal property as well as real property.

Question 39

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XI. The “Taking” Clause - B. Public Use Limitation Liberally Construed

Answer 39

If the government’s action is rationally related to a legitimate public purpose (e.g., for health, welfare, safety, economic, or aesthetic reasons), the public use requirement is satis-fied. Authorized takings by private enterprises are included if they redound to the public advantage (e.g., railroads and public utilities).

Question 40

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XI. The “Taking” Clause - C. Taking vs. Regulation

Answer 40

The crucial issue is whether governmental action is a taking (requiring payment of just compensation) or merely a regulation (not requiring compensation). There is no clear-cut formula for making this determination, but the following general guidelines apply:

1. Actual Appropriation or Physical Invasion
   An actual or physical appropriation of property will almost always amount to a taking. Even a temporary appropriation or physical invasion may constitute a taking. Exception:
   Emergency situations.

a. Temporary Occupations
Government action that amount to a temporary physical invasion or temporary occupation by the government may be a taking. The Court will look at factors like the degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.

2. Use Restrictions
   a. Denial of All Economic Value of Land-Taking
   If a government regulation denies a landowner of all economic use of his land (e.g., a regulation prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable

1) Temporary Denials of All Economic Use
Temporarily denying an owner of all economic use of property does not constitute a per se taking. Instead, the Court will carefully examine and weigh all the relevant cir-cumstances-the planners’ good faith, the reasonable expectations of the owners, the length of the delay, the delay’s actual effect on the value of the property, etc. - in order to determine whether “fairness and justice” require just compensation.

b. Decreasing Economic Value-Balancing Test
Generally, regulations that merely decrease the value of property (e.g., prohibit the most beneficial use) do not amount to a taking if they leave an economically viable use for the property. The Court will consider:

(i) the social goals sought to be promoted; (ii) the diminution in value to the owner; and (iii) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

c. Building/Development Permit Dedication Requirements
Municipalities often attempt to condition building or development permits on a landowner’s (i) conveying title to all or part of the property to the government, or (i) granting the public an easement to access the property. Known as exactions, these conditions constitute a taking unless (i) the government can show there is an essential nexus between the condition and the proposed development (i.e., the condition relates to a legitimate government interest), and (li) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer. Moreover, the Supreme Court has found a taking not only where land was in fact dedicated in contravention of the above requirements, but also where the landowner was denied a permit for refusing to dedicate land under a government request that was in contravention of the above requirements.

3. Remedy-“Just Compensation”
   When a government acts under the power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation (i.e., fair market value of the property taken). When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation. If the court determines that the government action amounted to a taking, the government will be required to either:
   (i) Pay the property owner just compensation for the property; or
   (ii) Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (i.e., temporary taking damages).

a. Just Compensation
Just compensation usually is measured by the fair market value of the property taken at the time of the taking. The measure is based on the loss to the owner. Increases in value to the owner’s remaining property as a result of the taking are not considered.

b. “Worthless” Propertv
Just compensation is measured by the loss to the owner, not by the gain to the taker. Thus, while property that is worthless to the owner can be the subject of a taking, no compensation need be paid when it is taken.

Question 41

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XII. Introduction to Substantive Due Process and Equal Protection - A. Relationship Between Substantive Due Process and Equal Protection

Answer 41

Both substantive due process and equal protection guarantees require the Court to review the substance of a law rather than the procedures employed.

1. Substantive Due Process
   If a law limits liberty of all persons to engage in some activity, on the bar exam it usually is a due process question.
2. Equal Protection
   If a law treats a person or class of persons differently from others, on the bar exam it usually is an equal protection problem.

a. Class of One
The Supreme Court has recognized- at least in relation to property regulation -that an equal protection claim may be brought not only for discrimination against a group, but also for arbitrary treatment against an individual- a class of one. However, the Court has held that an at-will government employee who claims to be a victim of arbitrary discrimination cannot use the class of one theory to make an equal protection claim.

Question 42

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XII. Introduction to Substantive Due Process and Equal Protection - B. What Standard of Review will the Court apply?

Answer 42

Under either guarantee, the Court is reviewing the legitimacy of governmental acts. Three standards of review are used:

1. Strict Scrutiny (Maximum Scrutiny)
   Regulations affecting fundamental rights (i.e., interstate travel, privacy, voting, and First Amendment rights) or involving suspect classifications (i.e., race, national origin, and alienage) are reviewed under the strict scrutiny standard: The law is upheld if it is necessary to achieve a compelling government purpose. This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated - especially if there is a less burdensome alternative to achieve the government’s goal.

a. Burden of Proof
The government has the burden of proof.

2. Intermediate Scrutiny
   Regulations involving quasi-suspect classifications (i.e., gender and legitimacy) are reviewed under the intermediate scrutiny standard: The law is upheld if it is substantially related to an important government purpose.

a. Burden of Proof
It is unclear who has the burden of proof. It is probably the government.

3. Rational Basis (Minimal Scrutiny)
   Regulations that do not affect fundamental rights or involve suspect or quasisuspect classifications (most laws) are reviewed under the rational basis standard: The law is upheld if it is rationally related to a legitimate government purpose. This is a very easy standard to meet; therefore the law is usually valid -unless it is arbitrary or irrational.

a. Burden of Proof
The person challenging the law has the burden of proof.
b. Classifications that Are Not Suspect or Quasi-Suspect
The rational basis standard is used to review regulations involving classifications that are not suspect or quasi-suspect, such as age, disability, and poverty.

Many exam questions ask you about the standard that the Court will use to review governmental regulation. Therefore, you need to know which standard will apply in a particular case (e.g., if a fundamental right is involved, strict scrutiny is applied). However, the choices may not name the standard (“strict scrutiny’) but merely state it (“upheld if necessary to a compelling government interest). Be prepared to recognize the standard by name or definition*

Due process or equal protection questions also commonly test your knowledge of which party bears the burden of proof. Know the standards and their respective burdens.

Question 43

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIII. Substantive Due Process - A. Constitutional Source - Two Clauses

Answer 43

The Due Process Clause of the Fifth Amendment applies to the federal government. The Due Process Clause of the Fourteenth Amendment applies to state and local governments.
The same tests are applied under each clause.

Question 44

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIII. Substantive Due Process - B. Applicable Standards

Answer 44

When a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard is applied.

Question 45

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIII. Substantive Due Process - C. A Few Irrebuttable Presumptions May Be Invalid

Answer 45

If facts are presumed against a person so that she cannot demonstrate that she is qualified for some important benefit or right, the “irrebuttable presumption” may be unconstitutional.

The Supreme Court no longer treats irrebuttable presumptions differently from other regulations or classifications. Thus, if an answer choice says “invalid because it is an irrebuttable presumption,” it is probably wrong. You must consider whether it concerns a fundamental right or suspect or quasi-suspect classification, and judge it accordingly.

Question 46

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIII. Substantive Due Process - D. Fair Notice

Answer 46

A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is forbidden or required. A regulation that fails to give fair notice violates the Due Process Clause. (See XVI.A.3.b., infra.)

Question 47

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIV. Equal Protection - A. Constitutional Source

Answer 47

The Equal Protection Clause of the Fourteenth Amendment is limited to state action. However, grossly unreasonable discrimination by the federal government violates the Due Process Clause of the Fifth Amendment. For example, under the Fifth Amendment, the Supreme Court struck down a federal law defining “marriage” and “spouse” to exclude same-sex couples as applied to states that recognized same-sex couples.

Question 48

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIV. Equal Protection - B. Applicable Standards

Answer 48

If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation. If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard. If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, the rational basis standard applies.

Question 49

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIV. Equal Protection - C. Proving Discriminatory Classification

Answer 49

For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by:
(i) A law that is discriminatory on its face;
(ii) A discriminatory application of a facially neutral law; or
(iii) A discriminatory motive behind the law.
Note: The third way to show intentional discrimination is the most difficult to prove. A discriminatory effect alone is not enough. The legislature’s discriminatory motive must be shown (e.g., by evidence of a history of discrimination).

Question 50

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIV. Equal Protection - D. Suspect Classifications

Answer 50

Classifications are suspect if they are based on race, national origin, or alienage.

1. Race and National Origin
   Classifications based on race or national origin are judged by a strict scrutiny standard.

а. “Benign” Government Discrimination-Affirmative Action
Government action-whether by federal, state, or local governmental bodies-that favors racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.

1) Remedying Past Discrimination
The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general past “societal discrimination.”

2) Where There Was No Past Discrimination
Even where the government has not engaged in past discrimination, it may have a compelling interest in affirmative action. However, the governmental action must be narrowly tailored to that interest.

a) Diversity in Public Education
The Supreme Court has not found diversity itself to be a sufficiently compelling reason to justify placing students in a particular elementary or secondary school on the basis of race. On the other hand, the Court has deferred to public colleges and universities that have claimed that they have a compelling interest in having a diverse student body. However, the Court will not defer to such institutions regarding whether a particular scheme for assuring diversity meets strict scrutiny. The school must show that no workable race-neutral alternatives would assure the diversity sought.

2. Alienage Classifications
   a. Federal Classifications
   Because of Congress’s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable.

b. State and Local Classifications
Generally, state/local laws on alienage are suspect classifications subject to strict scrutiny. Examples: It is unconstitutional for United States citizenship to be required for wel-fare, civil service jobs, or to become a lawyer.

1) Exception-Participation in Self-Government Process
If a law discriminates against alien participation in state government (e.g., voting, jury service, elective office), the rational basis standard is applied. Also, the rational basis standard is used for state and local laws limiting certain non-elective offices involving important public policy (e.g., police officers, probation officers, and primary and secondary schoolteachers).

c. Undocumented Aliens
Classifications involving undocumented aliens are not suspect. Thus, state laws regarding them are subject to a “rational basis” standard. (However, denial of free public education to undocumented alien children is invalid, and more than a simple rational basis standard was used by the Court.)

Question 51

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIV. Equal Protection - E. Quasi- Suspect Classifications

Answer 51

Classifications based on legitimacy and gender are “quasi-suspect.”

1. Gender Classifications
   Gender classifications are reviewed under the intermediate scrutiny standard: They must be substantially related to an important government purpose. The government bears the burden of showing an “exceedingly persuasive justification” for the discrimination.

a. Women
Intentional discrimination against women generally is invalid. Classifications benefiting women that are designed to remedy past discrimination generally are valid.

b. Intentional Discrimination Against Men
Intentional discrimination against men is generally invalid. However, certain laws have been found to be substantially related to an important government interest (e.g., statutory rape laws, all-male draft).

The following chart spells out the most likely exam question topics. In any event, remember that most gender classifications are struck down. This is particularly true if they perpetuate stereotypes of economically dependent women.

2. Legitimacy Classifications

Legitimacy classifications are also reviewed under the intermediate scrutiny standard: They must be substantially related to an important government interest. Discriminatory regulations intended to punish nonmarital children (e.g., law providing a benefit to marital children but not to nonmarital children) are invalid. Example: A law allowing only marital children to recover from their fathers’ estates is invalid. But note: A law allowing nonmarital children to recover from their fathers’ estates only if parenthood is established before the father’s death is valid.

Question 52

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XIV. Equal Protection - F. Other Classifications

Answer 52

All other classifications are evaluated under the rational basis standard. These include age, disability, and wealth classifications. For example, mandatory retirement ages may be established; and because education is not a fundamental right, there is no denial of equal protection when wealthier children can afford to pay for access to the best state-operated schools.

For the exam, you must memorize the suspect classifications (race, national origin, and sometimes alienage), quasi-suspect classifications (gender and legitimacy), and the fundamental rights (right to interstate travel, privacy, voting, and First Amendment rights). Any other classification or any other right is not entitled to more than the rational basis test, and thus the government regulation will usually be valid. Do not let your personal feelings lead you to apply the wrong standard (and pick the wrong answer) because you think the right is important or the group is worthy.

Question 53

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XV. Fundamental Rights - A. Introduction

Answer 53

Certain fundamental rights are protected under the Constitution. If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not others, it is an equal protection problem. The applicable standard in either case is strict scrutiny. Thus, government action must be necessary to protect a compelling governmental interest. (Remember that there must be no less restrictive means to achieve this goal.)

Question 54

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XV. Fundamental Rights - B. Right of Privacy

Answer 54

Various privacy rights including marriage, procreation, contraception, and childrearing are fundamental rights. Regulations affecting these rights are reviewed under the strict scrutiny standard.

1. Marriage
   The right of two people, regardless of sex, to enter into (and, probably, to dissolve) a marriage relationship is a fundamental right.
2. Use of Contraceptives
   A state cannot prohibit distribution of nonmedical contraceptives to adults.
3. Procreation
   Individuals have a fundamental right to reproduce that cannot be limited by the state.
4. Abortion
   The Supreme Court recently overruled the line of cases that held that the Constitution protected a woman’s right to obtain an abortion. 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, including respecting and preserving prenatal life at all stages of development, mitigating fetal pain, and protecting maternal health and safety.
5. Obscene Reading Material
   The right to privacy includes freedom to read obscene material in one’s home (except for child pornography). but not the right to sell, purchase, or transport such material.
6. Keeping Extended Family Together
   Zoning regulations that prevent family members-even extended ones-from living together are invalid. However, this right does not extend to unrelated people.
7. Rights of Parents
   Parents have a fundamental right to make decisions concerning the care. custody, and control of their children (e.g.. a parent has a fundamental right to send a child to private school or to forbid visitation with grandparents).
8. Intimate Sexual Conduct
   The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct (e.g., sodomy) that is not commercial in nature.
   While the Court has not stated what standard of review should be applied to such laws. it has indicated that the cannot even pass the rational basis test because of the lack of legitimate state interest.
9. Collection and Distribution of Personal Data-No Privacy Right
   The state may reasonably gather and distribute information about its citizens. Thus, there is no privacy right to prohibit the accumulation of names and addresses of patients for whom dangerous drugs are prescribed.

Question 55

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XV. Fundamental Rights - C. Right to Vote

Answer 55

The right to vote is a fundamental right. Thus, restrictions on that right, other than on the basis of residence, age, and citizenship, are invalid unless they can pass strict scrutiny.

Question 56

PART 4: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION

XV. Fundamental Rights - D. Right to Travel

Answer 56

An individual has a fundamental right to migrate from state to state and to be treated equally after moving into a new state. However, not every restriction on the right to cross state lines is an impairment of the right to travel (e.g., increased penalties for a father abandoning his children and leaving the state are valid). A problem arises when a state imposes a minimum durational residency requirement for receiving its benefits or otherwise dispenses state benefits based on the length of time a person has resided in the state. It is not clear whether the Court always reviews these regulations under the strict scrutiny standard. It may be best to just recall the following examples:

Residency Requirement = Status
One-year residency to receive full welfare benefits = Invalid
One-year residency to receive state-subsidized medical care = Invalid
One-year residency to vote in state = Invalid
Thirty-day residency to vote in state = valid
One-year residency to get divorced = Valid

Question 57

PART 5: FIRST AMENDMENT FREEDOMS

XVI. Freedom of Speech and Assembly - A. General Principles

Answer 57

The First Amendment prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the Fourteenth Amendment.

Whenever the government seeks to regulate the freedoms of speech or assembly, the Court will weigh the great importance of speech and assembly rights against the interests or policies sought to be served by the regulation. Keep the following guidelines in mind:

1. Government Speech

The Free Speech Clause restricts government regulation of private speech; it does not require the government to aid private speech nor restrict the government from expressing its views. The government generally is free to voice its opinions and to fund private speech that furthers its views while refusing to fund other private speech, absent some other constitutional limitation, such as the Establishment Clause or Equal Protection Clause. Because government speech does not implicate the First Amendment, it is not subject to the various levels of scrutiny that apply to government regulation of private speech (see infra). Generally, government speech and government funding of speech will be upheld if rationally related to a legitimate state interest.

a. Limitation
Spending programs may not impose conditions that limit First Amendment activities of fund recipients outside of the scope of the spending program itself. For example, the government cannot require recipients of federal funds given to organizations to combat HIV/AIDS to agree in their funding documents that they oppose prostitution.

b. Public Monuments

A city’s placement of a permanent monument in a public park is government speech and thus is not subject to Free Speech Clause scrutiny, even if the monument is pri-vately donated.

c. Compare-Govemment Funding of Private Speech
When the government chooses to fund private messages (e.g., college group newsletters), it generally must do so on a viewpoint-neutral basis.

1) Exception-Funding of the Arts

From a financial standpoint, the government cannot fund all artists, and choosing among those it will fund and those it will not inevitably must be based on the content of the art.

2. Content vs. Conduct
   Speech and assembly regulations can generally be categorized as either content regulations (regulations forbidding communication of specific ideas) or conduct regulations (regulations of the conduct associated with speaking, such as the time of the speech, sound level, etc.). Different standards are used to assess the validity of a regulation within each category.

a. Content
It is presumptively unconstitutional to place burdens on speech because of its content except for certain categories of speech (obscenity, defamation, etc.). Content-neutral speech regulations generally are subject to intermediate scrutiny; i.e., they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.

b. Conduct
Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions. (These rules will be discussed at B., infra.) Additionally, all regulations of speech are subject to the following restrictions.

3. Reasonableness of Regulation
   a. Overbroad Regulation Invalid
   If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep (e.g., a regulation outlawing all First Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote any cause without first obtaining a permit), the regulation is facially invalid (i.e., it may not be enforced against anyone -not even a person engaging in activity that is not constitutionally protected) unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected expression. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

1) Burden on Challenger
The person challenging the validity of the regulation has the burden of showing substantial overbreadth.

b. Void for Vagueness Doctrine
If a criminal law or regulation fails to give persons reasonable notice of what is prohibited (e.g., a prohibition of “lewd” speech), it may violate the Due Process Clause. This principle is applied somewhat strictly when First Amendment activity is involved.

c. Cannot Give Officials Unfettered Discretion
A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. If a statute gives licensing officials unbridled discretion, it is void on its face and speakers need not even apply for a permit. If the licensing statute includes standards, a speaker may not ignore the statute; he must seek a permit and if it is denied, he can challenge the denial on First Amendment grounds.

4. Scope of Speech
   The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree (e.g., a person need not display the state motto “live free or die” on a license plate). The freedom can extend to symbolic acts undertaken to communicate an idea (e.g., wearing a black armband to protest the war), although the government may regulate such conduct if it has an important interest in the regulation independent of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary (e.g., to facilitate a smooth draft, the government can prohibit the burning of draft cards).

a. Mandatory Financial Support
Although the government may not compel a person to express a message, it may tax people and use the revenue to express a message with which they disagree (e.g., a beef producer can be required to pay an assessment to support government-sponsored generic advertising of beef even if the producer thinks generic advertising is a waste of money). However, it appears that people cannot be compelled to subsidize private messages with which they disagree (e.g., while lawyers may be compelled to pay bar dues and government teachers can be compelled to pay union dues. the cannot be compelled to pay sums to such private associations that will be used to support political views that, or candidates whom, they do not endorse).

1) Exception-University Activity Fees
The government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral.

Question 58

PART 5: FIRST AMENDMENT FREEDOMS

XVI. Freedom of Speech and Assembly - B. Time, Place, and Manner Restrictions-Regulation of Conduct

Answer 58

The government has power to regulate the conduct associated with speech and assembly on government property, although the breadth of this power depends on whether the property involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

1. Public Forums and Designated Public Forums
   Public property that has historically been open to speech-related activities (e.g., streets, sidewalks, and public parks) is called a public forum. Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (e.g., schoolrooms that are open for after-school use by social, civic, or recreation groups), is called a designated public forum. To avoid strict scrutiny, a government regulation on the time, place, and manner of speech and assembly in public forums and designated public forums must:
   (i) Be content neutral (i.e., subject matter neutral and viewpoint neutral);
   (ii) Be narrowly tailored to serve an important government interest (however, it need not be the least restrictive means for accomplishing the interest); and
   (iii) Leave open alternative channels of communication.
   Note: Almost every legitimate governmental interest satisfies the significant/important standard.

Remember that even if a regulation meets the time, place, and manner requirements above, it could still be invalid if it is overbroad, vague, or gives unfettered discretion.

a. Injunctions
Injunctions against speech in public forums are treated differently from generally applicable laws. If the injunction is content-based, it must be necessary to achieve a compelling interest. If the injunction is content-neutral, it must burden no more speech than is necessary to achieve an important government interest.

2. Limited Public Forums and Nonpublic Forums
   Speech and assembly can be more broadly regulated in limited public forums (i.e., government property not historically linked with speech and assembly but opened for specific speech activity, such as a school gym opened to host a debate on a particular community issue) and nonpublic forums (i.e., government property not historically linked with speech and assembly and not held open for speech activities, such as military bases, schools while classes are in session, government workplaces, etc.). The government can regulate speech in such a forum to reserve the forum for its intended use. In such locations, regulations are valid if they are:
   a.
   Viewpoint neutral; and
   b.
   Reasonably related to a legitimate government purpose

Question 59

PART 5: FIRST AMENDMENT FREEDOMS

XVI. Freedom of Speech and Assembly - C. Unprotected Speech-Regulation Based on Content

Answer 59

To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected” speech under the First Amendment:

1. Inciting Imminent Lawless Action
   Speech can be burdened if it creates a clear and present danger of imminent lawless action. It must be shown that imminent illegal conduct is likely and that the speaker intended to cause it.
2. Fighting Words
   True threats (e.g., cross-burning carried out with an intent to intimidate) are not protected by the First Amendment. Speech also can be burdened if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person). Words that are merely annoying are not sufficient. Note also that the Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., proscribing only fighting words that insult on the basis of race, religion, or gender).

While this classification of punishable speech exists in theory, as a practical matter, statutes that attempt to punish fighting words are usually vague or overbroad. Thus, on the examination, they generally should be regarded as invalid.

3. Obscenity
   Obscene speech is not protected.

a. Elements
Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:
1) Appeals to the prurient interest in sex, using a community standard;
2) Is patently offensive and an affront to contemporary community standards; and
3) Lacks serious value (literary, artistic, political, or scientific), using a national reasonable person standard.

Note the two different standards used in the obscenity test: appeal to the prurient interest and offensiveness are judged by contemporary community standards (local or statewide, not necessarily national standards), while value is judged on a national reasonable person basis.

b. Standard May Be Different for Minors
The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience.
However, government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children.

c. Private Possession of Obscene Material
Private possession of obscene material in the home cannot be punished (except for possession of child pornography). However, the protection does not extend outside the home.

The First Amendment may also play a role in certain privacy actions. (See Torts outline.)

4. Some Commercial Speech
   As a general rule, commercial speech is afforded First Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is misleading or fraudulent may be burdened. Any other regulation of commercial speech will be upheld only if it:
   (i) Serves a substantial government interest;
   (ii) Directly advances that interest; and (iii) Is narrowly tailored to serve that interest.

“Narrowly tailored” does not require the least restrictive means of accomplishing the legislative goal; there just must be a reasonable fit between the goal and the means chosen.

a. Complete Bans
Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring.
b. Required Disclosures
The government may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

Question 60

PART 5: FIRST AMENDMENT FREEDOMS

XVI. Freedom of Speech and Assembly - D. Prior Restraints

Answer 60

D. Prior Restraints - Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards. They are rarely allowed. The government has a heavy burden in justifying a prior restraint; it must show that some special societal harm will otherwise result.
1. Procedural Safeguards
To be valid, a system for prior restraint must provide the following safeguards:
(i) The standards must be narrowly drawn, reasonable, and definite;
(ii) Injunction must promptly be sought; and
(iii) There must be prompt and final determination of the validity of the restraint.
A number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected.

2. Obscenity Cases

a. Seizures of Books and Films
Seizures of a single book or film may be made with a warrant based on probable cause, although if the item is available for sale to the public, a police officer may purchase a book or film to use as evidence without a warrant. Large-scale seizures must be preceded by a full-scale adversary hearing and a judicial determination of obscenity.

b. Movie Censorship
The Court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. Thus, the Court allows the government to establish censorship boards to screen movies before they are released, as long as the procedural safeguards discussed above are followed.

c. Burden of Government

When the government adopts a content-based prior restraint of speech, the government has the burden of proving that the restriction is narrowly tailored to accomplish its goal.

Question 61

PART 5: FIRST AMENDMENT FREEDOMS

XVI. Freedom of Speech and Assembly - E. Bar Memberships and Public Employment

Answer 61

1. Restraints on Speech Activities of Government Employees
   Under the First Amendment, speech generally cannot be regulated or punished based on the content of the speech unless the regulation or punishment is necessary to achieve a compelling government interest. However, special rules apply when the government seeks to punish a government employee for speech or speech-related activities.

a. Official Duty Exception
A government employer may punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern.
b. Other Speech
If speech is not made pursuant to an employee’s official duties, two tests apply: If a government employee’s speech does not involve a matter of public concern, the courts give the government employer a wide degree of deference and allow the employer to punish the employee if the speech was disruptive of the work environment. However, if a matter of public concern is involved, courts must balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service.

2. Loyalty Oaths
   The government may require employees to take loyalty oaths, as long as the oaths are not overbroad or vague

a. Overbreadth
An oath cannot prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine.

b. Vagueness
An oath requiring employees to support the Constitution and to oppose the unlawful overthrow of the government is valid; but an oath requiring public employees to support the flag is invalid (because refusal to salute the flag on religious grounds might conflict with the oath).

3. Disclosure of Associations
   The government may not force disclosure of every organizational membership in exchange for a government employment or other benefit; it may only inquire into those activities that are relevant to the employment or benefit sought. The Court has extended this analysis to charitable disclosures. Also, a person can exercise his Fifth Amendment right to remain silent if the disclosure would be incriminating

Question 62

PART 5: FIRST AMENDMENT FREEDOMS

XVII. Freedom of Religion - A. Constitutional Provision

Answer 62

The First Amendment prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the Fourteenth Amendment.

Question 63

PART 5: FIRST AMENDMENT FREEDOMS

XVII. Freedom of Religion - B. Free Exercise Clause

Answer 63

1. No Punishment of Beliefs
   The Free Exercise Clause prohibits government from punishing someone on the basis of her religious beliefs. For example, the Clause forbids:
   (i) State governments from requiring office holders or employees to take a religious oath (the federal government is similarly restricted by Article VI);
   (ii) States from excluding clerics from holding public office; and
   (iii) Courts from declaring a religious belief to be false.

The Supreme Court has not defined what constitutes religious belief, but it is clear that religious belief need not come from an organized religion or involve a supreme being. The Court has never held an asserted religious belief to be not religious for First Amendment purposes.

Technically, the government may deny benefits to or impose a burden on someone based on her religious beliefs if there is a compelling inter-est. However, the Supreme Court has never found an interest so compelling that it justifies such action.

2. Discriminatory Laws Subject to Strict Scrutiny
   A law or other government conduct that discriminates on the basis of religion is subject to strict scrutiny. A law is discriminatory if it is either:

Not neutral on its face (that is, the law expressly provides favored or disfavored treatment based on religious belief, conduct, or status) or

Facially neutral but not generally applicable (that is, the law is silent with regard to religion but, by design, it targets religion generally or a religion in particular)

a. Neutral Laws of General Applicability
A law that is facially neutral and generally applicable is not subject to the Free Exercise Clause. In other words, the Free Exercise Clause cannot be used to challenge government action unless the action was specifically designed to interfere with religion.

b. Laws with System for Exemptions Not Generally Applicable
A law that gives government officials discretion to grant exemptions from the law is not generally applicable. Thus, if someone seeks an exception from such a law on religious grounds and the government refuses to grant the exception, that person can challenge the denial on Free Exercise Clause grounds. Strict scrutiny would apply.

3. No Religious Exemptions Required
   The Free Exercise Clause does not require religious exemptions from generally applicable governmental regulations that happen to burden religious conduct; i.e., a law that regulates the conduct of all people can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law.

a. Exception-Ministers
Religious organizations must be granted an exemption from suits alleging employment discrimination by ministers against their religious organizations. Imposing an unwanted minister would violate the Free Exercise Clause, and allowing the government to determine who will minister within a faith also would violate the Establishment Clause. This exception extends not only to the head of a congregation, but also to others who are in any position considered by the congregation to be ministerial.

b. Exception-Unemployment Compensation Cases
A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons (i.e., the work or conditions of work conflict with tenets of the worker’s religion). The worker need not even belong to a formal religious organization in such a situation, as long as the belief is sincere.

c. Exception-Right of Amish Not to Educate Children
The Supreme Court has granted the Amish an exemption from a law requiring compulsory school attendance until age 16, based on the Free Exercise Clause and the fundamental right to educate one’s children.

d. Federal Statutory Exemption-Outside the Scope of Exam
The federal Religious Freedom Restoration Act (“RFRA”) allows a person to challenge federal laws of general applicability as burdening his religious beliefs and practices, and strict scrutiny is applied in actions brought under the Act. However, the RFRA is statutory in nature and is outside the scope of a constitutional law question.

To summarize, the Free Exercise Clause prohibits government interference with religious beliefs, but it generally does not prohibit regulation of conduct. If the governmental action regulates general conduct- including religious conduct -it is valid (e.g., banning any use of peyote is valid even though a group’s religious beliefs require its use during its ceremonies). The only exceptions to this rule are those pertaining to unemployment compensation and the education of Amish children.

4. No Exclusion from Government Benefits Programs Solely Because Organization Is Religious
   A state may not limit eligibility for a generally available governmental benefit to nonreligious organizations. Even if a state is not required to create a benefit, if it chooses to do so, it may not exclude an otherwise qualified individual or institution from receiving the benefit based solely on the basis of their religious status-there is no compelling interest that would justify the exclusion. Thus, if a state provides textbooks to secular private schools, it must provide the same benefit to otherwise-eligible religious private schools.

Question 64

PART 5: FIRST AMENDMENT FREEDOMS

XVII. Freedom of Religion - C. Establishment Clause

Answer 64

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.

Although it hasn’t explicitly overruled prior cases, the Supreme Court has turned away from earlier approaches to the Establishment Clause.
While you may have learned the Lemon test in law school, you should not use it on the exam. Likewise, the endorsement test-an offshoot of the
Lemon test that focused on whether the government appeared to endorse or disapprove of religion from the standpoint of a reasonable and informed observer- has been abandoned.

1. Key Concepts

a. Neutrality Principle
The government generally must remain neutral with respect to religion, neither favoring nor disfavoring it.

b. Coercion Prohibited
The government may not directly or indirectly coerce individuals to exercise (or refrain from exercising) their religion.

c. History and Tradition Approach
The Court has often stated that 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. More specifically, the Court also looks at the time when the Constitution was first adopted and tries to determine what the Founders intended to prevent by adopting the Establishment Clause and what they would have deemed acceptable. Overall, this approach is sometimes referred to as “an analysis focused on original meaning and history.”

If you are faced with an Establishment Clause issue on the exam, focus on neutrality, coercion, history, and the Founders’ intent. Discuss whether the state action is neutral and/or coercive with regard to religion, whether it is consistent with historical practice, and whether the Founders would have considered it acceptable. Watch for facts indicating that the religious practices or displays at issue have been around for a while or have a historical setting that neutralizes their religious message.

2. Types of Cases
   The Establishment Clause cases can be grouped into four categories: (1) cases preferring one religious sect over others: (2) a limited group of cases unconnected to financial aid or education; (3) cases involving financial aid to religiously affiliated institutions; and (4) cases concerning religious activities in public schools

a. Sect Preference

Government action that prefers one religious sect over another violates the Establishment Clause, at least if such favoritism is not necessary to achieve a compelling interest.

b. Cases Unconnected to Financial Aid or Education
In cases not connected to financial aid or education and not involving a sect preference, a good rule of thumb is that a law favoring or burdening religion or a specific religious group will be invalid (for example, exempting only “traditional religions” from state registration requirements), but a law favoring or burdening a large segment of society that happens to include religious groups will be upheld (for example, a Sunday closing law).

c. Cases Involving Financial Benefits to Religious Institutions
A statute authorizing governmental aid to a religious affiliated institution must be neutral toward religion.

Recipient-Based Aid
A neutral benefit program (such as school tuition assistance) is valid even if, as a result of the independent choices of private benefit recipients, it allows public funds to be directed to a religious organization (such as a religious private school).

Aid to Grade Schools and High Schools
Programs of aid to grade schools or high schools are subject to the same test as all other laws under the Establishment Clause. Most of the time, programs that include both religious and secular private schools will be valid. If a state subsidizes private education, it can’t deny the same funding to religious schools. Treating religious private schools the same as non-religious private schools does not violate the Establishment Clause and is required by the Free Exercise Clause.

d. Religious Activities in Public Schools
School-sponsored religious activity is invalid, but school accommodation of religion may be valid. If a public school allows members of the public and private organizations to use school property when classes are not in session, it can’t deny a religious organization permission to use the property for meetings merely because religious topics will be discussed.

EXAMPLES
1) Prayer and Bible reading included as part of a school’s curriculum are invalid as establishments of religion.
2) The Establishment Clause is not violated when a football coach offers a silent prayer on the field following a public high school football game.