1 Conlaw Pqs And Essays

Front 1

Congress enacts a criminal statute prohibiting "any person from interfering in any way with any right conferred on another person by the Equal Protection Clause of the Fourteenth Amendment."

Application of this statute to a private citizen would be most clearly constitutional if the citizen, with threats of violence, coerces
A. A public school teacher to exclude Black pupils from her class, solely because of their race.
B. Black pupils, solely because of their race, to refrain from attending a privately owned and operated school licensed by the state.
C. The bus driver operating a free school bus service under the sponsorship of a local church to refuse to allow Black pupils on the bus, solely because of their race.
D. The federal official in charge of distributing certain federal benefits directly to students from distributing them to Black pupils, solely because of their race.

Back 1

Answer choice A is correct. The Equal Protection Clause prohibits government discrimination against similarly situated persons based on protected categories, such as race. Application to a private citizen is appropriate where he coerces a government employee to commit such illegal discrimination. Answer choice B is incorrect because it does not implicate government action necessary to implicate the Equal Protection Clause. Answer choice D is incorrect because the Fourteenth Amendment by its terms does not apply to federal action; instead the equal protection guarantees of the Fourteenth Amendment apply to the federal government through the Due Process Clause of the Fifth Amendment.

Front 2

As part of a comprehensive federal aid-to-education program, Congress included the following provision as conditions for state receipt of federal funds: Salary supplements can be paid to teachers in public and private schools, up to 10 percent of existing salary schedules, if present compensation is less than the average salary for persons of comparable training and experience, provided that no such supplement is paid to any teacher who instructs in religious subjects. A challenge to the statute results in a high-profile court case.

On the substantive constitutional issue, the most likely result is that the salary supplements will be

Back 2

On the substantive constitutional issue, the most likely result is that the salary supplements will be
A. Sustained, because the statute provides that no supplements will be made to teachers who are engaged in any religious instruction.
B. Sustained, because to distinguish between private and public school teachers would violate the religious freedom clause of the First Amendment.
C. Held unconstitutional, because some religions would benefit disproportionately.
D. Held unconstitutional, because the policing of the restriction would amount to an excessive entanglement with religion.

Front 3

Answer choice D is correct. The Establishment Clause of the First Amendment prohibits the establishment of religion by government. Government also cannot show a preference of one religion over another. If a government action does impact religion, it will only be valid if (i) it has a secular purpose, (ii) the principal effect neither advances nor inhibits religion, and (iii) it does not result in excessive entanglement of government with religion. Here, it would take "excessive entanglement" to determine what constitutes "instruction in religious subjects." This directly invalidates the provision under the appropriate test.

Back 3

Answer choice A is incorrect because it only considers one part of the statute and neglects potential excessive entanglement. Answer choice B is incorrect because it incorrectly focuses on the rights of the teachers rather than the problems related to the Establishment Clause. Whether the teachers receive a supplement does not impact their freedom of religion here. Answer choice C is incorrect because it is unclear whether any religion would be affected, and policing the policy would create an issue. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

Front 4

Why can't a state enact a statute forbidding foreign cars from parking in state owned parking lots to protect the manufacture of autos in the state?

Back 4

Because states are limited in their authority to burden foreign commerce.
(Not a due process or commerce clause argument here)

Front 5

If the govt takes a corner of your land you weren't using and occupies it with surveillance facility, is this a taking?

Back 5

Any permanent physical occupation by the government of private property is a taking for which just compensation to the property owner is required. It is irrelevant that in this case the portion of the owner's tract of land to be occupied by the government is unused and very small. I was thinking of a regulatory taking - not a physical taking.

Front 6

Where would Congress get the authority to pass a statute in response to a complaint by some professional licensees in a state alleging that the state commission that gives out the licenses were unfairly favoring some licensees over others?

Back 6

The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Amendment, but not to expand those rights or create new ones. Congressional legislation is appropriate within the meaning of Section 5 if (1) it seeks to prevent or remedy actions by state or local governments that violate provisions of the Fourteenth Amendment, and (2) its requirements are congruent with and proportional to the Fourteenth Amendment violations it addresses. In this case, the legislation seeks to prevent actions by state agencies that violate the due process clause of the Fourteenth Amendment, and the requirements of the legislation appear to be proportional to and congruent with the Fourteenth Amendment violations Congress has sought to prevent.

Front 7

A state college instructor was discharged because of her refusal to comply with a state statute requiring public employees to swear or affirm that they will (i) "uphold and defend" the state and federal constitutions and (ii) "oppose the overthrow" of the state or federal governments "by force, violence, or by any improper method." The statute had previously been held constitutional by the state supreme court. The instructor filed a complaint in federal district court alleging the unconstitutionality of the statute and seeking an injunction and damages.

Which of the following is the state's strongest argument for sustaining the validity of the statute?
A. Government employment is a privilege, not a right.
B. The oath as a whole is only a commitment to abide by constitutional processes.
C. The First and Fourteenth Amendments permit a state to fix the conditions of state employment.
D. The state has a compelling need to keep disloyal persons out of governmental positions of trust

Back 7

Answer choice B is correct. Public employees may be required to take loyalty oaths promising that they will support the Constitution and oppose the unlawful overthrow of the government. While such oaths are often found to be vague or overbroad, this is still the strongest argument the state can make here. Answer choice A is incorrect because public employees may have a property interest in public employment in certain situations. Answer choice C is incorrect because the state's argument that the oath is a commitment to remain law-abiding, rather than affecting actual speech, is a more compelling argument. Answer choice D is incorrect because it is hinting at speech regulation, but the state's argument that the oath is a commitment to remain law-abiding, rather than affecting actual speech, is a more compelling argument.

Front 8

A state statute requires the closure of the official state records of arrest and prosecution for any person who is acquitted or has the charges against him dropped or dismissed. The purpose of this statute is to protect these persons from further publicity or embarrassment. The statute does not prohibit the publication of such information that is in the possession of private persons.
A prominent businessman residing in the state was arrested and charged with rape, but the prosecutor dropped the charges without further explanation, and the records were closed to the public. The local newspaper conducted an investigation to determine why the businessman was not prosecuted, but was refused access to the closed official state records. The newspaper filed suit against appropriate state officials to force opening of the records and to invalidate the statute on constitutional grounds.
Which of the following would be most helpful to the state in defending the constitutionality of this statute?

Back 8

A. The fact that the statute treats in an identical manner the arrest and prosecution records of all persons who have been acquitted of a crime by a court or against whom criminal charges were filed and subsequently dropped or dismissed.
B. The argument that the rights of the press are no greater than those of citizens generally.
C. The fact that the statute only prohibits public access to these official state records and does not prohibit the publication of information they contain that is in the possession of private persons.
D. The argument that the state may seal official records owned by the state on any basis its legislature chooses.

Front 9

Answer choice C is correct. The press has the right to publish information about matters of public concern. This right may be restricted only by a regulation that is narrowly tailored to further a compelling government interest. The state’s best argument under these facts is that the statute does not restrict the right to publish the information, but only the right to access it through the courts. Because the information is also available from private sources, the press still has means to acquire and publish it. This argument is best articulated in answer choice C. Answer choice A is incorrect because it asserts a defense based on equal protection, which is inapplicable under these facts.

Back 9

Answer choice B is incorrect because, although it is true, it does not address the real issue of this question, which the right of the press to publish the information. Answer choice D is incorrect because it is untrue, and it addresses only the issue of access, and not the right to publish. Note that a phrase like "on any basis its legislature chooses" is almost always the wrong answer because it gives virtually unlimited power to one branch of government, and ignores the separation of powers doctrine. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

Front 10

Attorneys in a state cannot be sworn in to practice before any state court until they have resided within the state for one year. The state originally enacted this statute to ensure that any attorney practicing in the state has received the experience needed to be an effective advocate.

Which of the following is the strongest ground on which to challenge the requirement that attorneys must have been residents of the state for at least one year prior to being sworn in?
A. The Privileges and Immunities Clause of the Fourteenth Amendment.
B. The Due Process Clause of the Fourteenth Amendment.
C. The Equal Protection Clause of the Fourteenth Amendment.
D. The Obligation of Contracts Clause.

Back 10

Answer choice C is correct. The Equal Protection Clause of the Fourteenth Amendment provides that states are generally prohibited from passing legislation that treats similarly situated persons differently. When a fundamental right (such as the right to travel being impacted by these residency requirements) is implicated, the court will review the legislation under strict scrutiny. While attorneys are certainly not members of a protected class, they do have a fundamental right to travel and practice law in any state in which they pass the bar exam. Answer choice A is incorrect because it applies to non-residents only, so would not be as strong an argument for residents who have been residents for less than one year. Answer choice B is incorrect because the Due Process Clause generally applies when the denial of a right is universal, as opposed to a particular class. Answer choice D is incorrect because it is irrelevant, as no existing contract was hindered.