Missed MBE Qs Flashcards
(42 cards)
JUDICIAL POWER
Judicial Review in Operation:
Acting pursuant to its general power to tax and spend, Congress enacted a federal statute appropriating funds for the construction of religious schools in areas that (i) meet certain population requirements and (ii) are not within 50 miles of an existing public school. No such schools have yet been built, as no communities currently in existence meet both of these requirements. An organization aimed at preserving public education sued in federal court to enjoin the construction of any such schools, arguing that government funding for the construction violates the Establishment of Religion Clause. Which of the following best describes how the district court should dispose of the suit?
A. Hear the case, and issue the injunction if the government cannot show that the construction of the schools is rationally related to a legitimate government interest.
B. Hear the case, and issue an injunction if the statute does not have a secular purpose.
C. Dismiss the case, because there is no organizational standing to challenge appropriation of federal funds.
D. Dismiss the case, because it does not involve a justiciable case or controversy.
Answer choice D is correct. An action that is brought too soon (i.e., is “unripe”) will not be heard by federal courts. In order for a case to be ripe for litigation, the plaintiff must have experienced a real injury or the imminent threat of real injury. Because no community fits the statute’s requirements at this time, the case is not ripe and should be dismissed.
JUDICIAL POWER
Judicial Review in Operation:
unripe
will not be heard by federal courts. In order for a case to be ripe for litigation, the plaintiff must have experienced a real injury or the imminent threat of real injury
JUDICIAL POWER
Judicial Review in Operation:
an organization may bring an action on behalf of its members if
if (i) its members would have standing to sue, and (ii) the interests at stake are germane to the organization’s purpose. There would be organizational standing here because, although there is generally no taxpayer standing, taxpayers do have standing when challenging government spending under the Establishment Clause. Further, the interest at stake is directly related to the organization’s purpose. The case may not be heard, however, because it is unripe.
INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:
The Department of Defense entered into a contract with a state-owned weapons manufacturer. The contract called for the production of defense equipment to be used by the military. The Department of Defense agreed to purchase all of the defense equipment produced by the state-owned weapons manufacturer for a period of one year. Each purchase made by the Department of Defense during that one-year period was subject to taxation pursuant to state law. The Department of Defense filed suit in federal court challenging the constitutionality of the state tax applied to its purchases under the contract.
Is the Department of Defense subject to the state tax for its purchase?
A. No, because the contract involved military defense.
B. No, because the Department of Defense is immune from state taxation.
C. Yes, because the power to tax is an essential incident of state sovereignty.
D. Yes, because, by purchasing defense equipment from a state-owned manufacturer, the Department of Defense consented to state taxation.
Answer choice B is correct. The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states. In this case, the Department of Defense, part of the federal government, is immune from taxation by the state for any purchases made pursuant to the defense contract.
INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:
Is mere fact that a contract involved in military defense enough to result in immunity from state action?
NO, not necessarily
if the military is a purchaser under the contract, then yes
INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:
Taxation & State Sovereignty
Although the power to tax is an essential incident of state sovereignty, that power is limited when applied to the federal government.
INTERGOVERNMENTAL IMMUNITIES
Federal Immunities:
Taxation & State Sovereignty (Can fed consent to taxation by state gov’t ben entering into contract w/ state owned business?)
NO, It is immune from state taxation regardless of whether the other party to the contract was the state or a private entity.
STATE REGULATION & TAXATION OF COMMERCE
The Dormant Commerce Clause:
Congress enacted a statute permitting states to enact any law regarding the regulation and taxation of persons in the financial services industry, provided that any such law is consistent with federal statutes regulating the industry. A state enacted a statute that taxed all out-of-state financial services corporations doing business in the state. However, the statute did not tax local financial services corporations. A group of out-of-state financial service corporations joined in a court action challenging the constitutionality of the state statute.
Is the state statute constitutional?
A. No, because it violates the Dormant Commerce Clause.
B. No, because it violates the Comity Clause.
C. Yes, because a state may tax a corporation for doing business in the state.
D. Yes, because Congress specifically permitted this type of statute.
Answer choice D is correct. Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. In this case, Congress, by statute, permitted states to enact any law, including a tax law, regarding the financial services industry that is consistent with applicable federal statutes. Accordingly, the state enacted a statute taxing out-of-state financial services corporations doing business in the state. Although the state statute discriminated against out-of-state corporations, the statute enacted by Congress permitted such discrimination.
PROCEDURAL DUE PROCESS
Procedural Due Process Applied:
The jury commissioner at a state court was charged with stealing the identities of dozens of potential jurors. She readily confessed to her crime to her employer immediately after the allegations of her behavior surfaced. The county immediately terminated her employment. Both her employment contract and state law clearly stated that jury commissioners can be terminated only if there is just cause to do so. A hearing was scheduled for a week following the commissioner’s termination. The commissioner filed suit to have herself reinstated as commissioner. She alleged that, because she had not been convicted, she was entitled to a pre-termination notice and an opportunity to respond.
Has the commissioner likely received the due process to which she is entitled?
A. Yes, because she will receive a prompt post-termination hearing.
B. Yes, because no hearing is required when there is
cause to terminate the employee.
C. No, because she has not been convicted of a crime.
D. No, because she did not receive a pre-termination hearing.
Answer choice A is correct. Generally, a public employee who may be discharged only for cause has a property interest in her job, and therefore is entitled to notice of termination and a pre-termination opportunity to respond. A formal pre-termination hearing, however, is not required. If there is a significant reason for immediately removing a “for-cause” employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process. Here, the commissioner’s theft of information directly related to her position as jury commissioner and the ability to continue such criminal behavior is a justification for her immediate removal as commissioner. Accordingly, only a post-termination hearing is required, and as that hearing is set for the week following the commissioner’s termination, the commissioner has likely received proper due process.
PROCEDURAL DUE PROCESS
Procedural Due Process Applied:
public employees’ right to to hearing upon termination for cause
absolute, but can be post termination
EQUAL PROTECTION
General Considerations:
A state passed legislation requiring professional gardeners to obtain a license to charge for gardening services within the state. To obtain the license, individuals must pay a $50 fee and complete an instructional class covering, among other things, how to avoid underground electric and gas lines when gardening. Although it was not the legislature’s intent, the legislation disproportionately affects one race, as the majority of gardeners in the state are of the same race. Is the legislation constitutional?
A. No, because it has a disparate impact on a particular race and is not necessary to advance a compelling government interest.
B. No, because race is a suspect classification.
C. Yes, because it is rationally related to a legitimate state interest.
D. Yes, because it is substantially related to an important government interest.
Answer choice C is correct. The rational basis standard of review applies to laws that draw distinctions based on age, wealth, or most other classifications (such as “gardeners”), and those that have a disparate impact on a particular class without a discriminatory intent. Because there is no discriminatory intent in this legislation, rational basis review would apply.
EQUAL PROTECTION
General Considerations:
What does disparate impact trigger?
in order to trigger strict or intermediate scrutiny, there must be a discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of a particular race is, without intent, insufficient. Without discriminatory intent, the state must only prove that the law is rationally related to a legitimate state interest
EQUAL PROTECTION
General Considerations:
Intermediate scrutiny test is…
substantially related to an IMPORTANT government interest.
FREEDOM OF RELIGION
Free Exercise:
An employee of a large non-denominational church served five years as the minister for the church’s youth program. During the past year, the minister was diagnosed with severe chronic migraine headaches, which caused him to miss work one or two days per week. Subsequently, the senior pastor of the church and the board of deacons, who had final say on the hiring and firing of all ministerial staff, unanimously voted to terminate the minister’s employment and provide him with a modest severance package. He filed suit against the church under the Americans with Disabilities Act, which, in part, protects both government and private employees against discrimination based on certain medical and physical disabilities, including chronic migraine headaches. The minister seeks reinstatement and back pay. The church filed a motion for summary judgment. Should the court grant the church’s summary judgment motion?
A. Yes, because the Free Exercise clause of the First Amendment supports the dismissal.
B. Yes, because it violates the church’s First Amendment association rights.
C. No, because the Americans with Disabilities Act is a neutral law of general applicability.
D. No, because the minister’s due process and equal protection rights were violated.
Answer A: In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.
FREEDOM OF RELIGION
Free Exercise:
Does the ministerial exception violate the free association rights of a church under the First Amendment?
No! That’s not how we deal with these cases.
FREEDOM OF RELIGION
Free Exercise:
A public square located in a major city contained a number of statues of historical figures, including religious ones. Members of various religions came to the square to pray in front of the religious statues. One religious statue depicted the founding member of a particular religious sect. Under the sincerely held beliefs of the sect, sect members were not permitted to worship or pray at any religious statue until sundown. The sect used the statue in the square as a place of worship and prayer on a regular basis, considering it sacred. As a result of an outbreak in crime in the square at night, the city enacted an ordinance prohibiting the presence of any persons in the square after sundown. The sect challenged the ordinance on the ground that it violated the Free Exercise Clause.
Will the sect’s challenge to the ordinance be successful?
A. No, because the ordinance was not enacted to target the sect’s religious practices.
B. No, because the ordinance is a valid time, place, or manner restriction.
C. Yes, because the ordinance restricted the sect’s religious practices.
D. Yes, because the ordinance did not impact the practice of other religions.
Answer choice A is correct. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test. In this case, there are no facts to suggest that the ordinance was enacted to intentionally target the sect’s religious conduct. Instead, the ordinance was enacted due to an outbreak of crime at night in the square. Although the ordinance has a disparate impact on the sect’s exercise of religion, the ordinance is a neutral law of general applicability, subject only to rational basis review. Therefore, the sect’s challenge will not be successful.
FREEDOM OF RELIGION
Free Exercise:
Do time/place/manner restrictions apply to free exercise?
NO
FREEDOM OF RELIGION
Free Exercise:
Is disparate impact on a particular religion sufficient in and of itself to constitute a violation of the Free Exercise Clause?
NO!
FREEDOM OF EXPRESSION & ASSOCIATION
Regulation of Content:
A state highway administration, acting pursuant to statutory authorization by the state legislature, has promulgated rules for large electronic billboards located along roads maintained by the state. These rules are concerned with the potential for driver distraction and the ensuing adverse consequences for highway safety. Among the rules is one that bans the graphic display of violence. The producer of a movie wants to promote the movie through a short clip from the movie on billboards subject to this rule. The clip contains a graphic display of violence.
The producer has filed an action in the appropriate federal court challenging the state highway administration’s rule as a violation of the First Amendment as applicable to the states through the Fourteenth Amendment.
Of the following standards, by which should the state highway administration’s rule be judged?
A. As a rule that deals with a matter traditionally subject to regulation, it must be upheld unless it is arbitrary or irrational.
B. As a regulation of commercial speech, there must be a reasonable fit between the government’s ends and the means chosen to accomplish those ends.
C. As a time, place, or manner restriction, it must be narrowly tailored to serve a significant governmental interest.
D. As a content regulation, it must be necessary to achieve a compelling governmental interest.
Answer choice D is correct. Although viewpoint neutral, the state highway administration’s rule is a content-based regulation of speech because it prohibits the graphic display of violence. As such, the strict scrutiny standard of review applies. The rule must be necessary to achieve a compelling governmental interest.
Time, place, or manner restrictions must be narrowly tailored to serve a significant governmental interest, and arguably, rules regarding electronic billboard specifically are time, place, and manner restrictions. However, the portion of the rule affecting the movie producer is a restriction of the content of expression. The more stringent standard applies.
JUDICIAL POWER
Judicial Review in Operation: (standing 2x time missed)
A defendant was indicted for violation of a federal criminal statute that made possession or use of harmful chemicals for non-peaceful purposes illegal. Violation of the statute is punishable by imprisonment. The statute was enacted by Congress to implement a treaty. The defendant admitted that he violated the statute, but contended that the statute violated the Tenth Amendment by interfering with powers reserved to the states. Does the defendant have standing to pursue this challenge?
A. Yes, because the defendant would suffer an injury in fact from enforcement of the statute.
B. Yes, because the statute exceeded Congress’s enumerated powers.
C. No, because the right to assert a Tenth Amendment challenge belongs only to the state.
D. No, because the statute was enacted by Congress to implement a treaty.
Answer choice A is correct. In order to have standing to assert a claim or defense, a person must suffer an injury in fact. Here, the defendant is subject to imprisonment for violation of the statute, which the defendant contends is unconstitutional. Because the defendant has suffered an injury in fact, he has standing to assert the claim.
JUDICIAL POWER
Judicial Review in Operation: (standing 3x time missed)
The President created an office to encourage the improvement of local communities through faith-based organizations. The office was funded from monies appropriated by Congress for the general discretionary use of the President. The office provided support only to religious organizations. A taxpayer brought suit in federal court challenging the constitutionality of this office. The federal government has moved to dismiss this suit. Should the court allow the taxpayer’s suit to proceed?
A. Yes, because the funding of the office violates the First Amendment Establishment of Religion Clause.
B. Yes, because the source of the funds for the office is a congressional appropriation.
C. No, because the plaintiff as a taxpayer lacks standing.
D. No, because the First Amendment Establishment of Religion Clause does not apply to the executive branch.
Answer choice C is correct. A taxpayer generally does not have standing to file a federal lawsuit simply because the taxpayer believes the government has allocated funds in an improper way. Answer choice A is incorrect because, although there is an exception to the rule that a taxpayer lacks standing to challenge a governmental expenditure when the expenditure violates the First Amendment Establishment of Religion Clause, this exception is very narrow. The exception does not apply to the expenditure of general discretionary funds by the executive branch.x
EXAM NOTE
Standing questions: P qualified?
Eliminate answer choices involving only the substance of the claim and focus on whether the P is legally qualified to press a claim, regardless of merit.
EXAM NOTES
Standing questions: tax payer
Not for gov generally allocating funds in a way that they don’t like.
Has standing when challenging gov’t expenditures as violating the Establishment Clause. BUT it does not apply to:
(1) Congressional transfer of property to religious orgs under Property Power
(2) Prex expenditures to religious orgs from discretionary fund appropriated by Congress
THE POWER OF CONGRESS
War & Defense Powers:
U.S. armed forces seized an alien engaged in combat against them in a foreign country. The alien was taken to a territory outside the United States but over which the United States had sovereign control. Shortly thereafter, Congress passed a law denying federal courts jurisdiction over habeas corpus petitions filed by individuals who were designated as enemy combatants, but did not generally suspend the privilege of filing habeas corpus petitions. Subsequently, the alien, who was designated an enemy combatant by the President, filed a habeas corpus petition in federal court. May the court hear this petition?
A. No, because Congress denied the federal courts jurisdiction over this type of petition.
B. No, because Congress has plenary power over aliens.
C. Yes, because Congress lacks the power to limit the jurisdiction of the federal judiciary.
D. Yes, because the privilege of filing a habeas corpus petition extends to aliens in a territory over which the United States has sovereign control.
Answer choice D is correct. Under the Suspension Clause of Article I, Section 9, Clause 2, a detainee retains the privilege to file a habeas corpus petition unless this privilege is suspended. This clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States. Answer choice A is incorrect because, while Congress may limit the jurisdiction of the federal judiciary, Congress may not exercise this power in a manner that violates the Constitution. Accordingly, Congress may not limit the constitutional right to habeas corpus by removing jurisdiction from federal courts. Answer choice B is incorrect because, although Congress generally has plenary power over aliens, this power is subject to the privilege to file a habeas corpus petition. Answer choice C is incorrect because Congress has the power to limit the jurisdiction of the federal judiciary.
