Multistate Bar Exam Constitutional Law 3 — Questions and Answers
Question 1: A state law prohibits any person from burning the American flag as part of a political protest. A defendant is convicted under the statute. The Supreme Court should:
- Affirm, because the government has a compelling interest in preserving national symbols
- Reverse, because flag burning is symbolic political speech protected by the First Amendment (Correct answer)
- Affirm, because the law is a content-neutral time, place, and manner restriction
- Reverse, only because the statute applies to all flag burning, not just political acts
Correct answer: Reverse, because flag burning is symbolic political speech protected by the First Amendment
In Texas v. Johnson, the Court held that flag burning as political protest is protected symbolic speech under the First Amendment, and the government's interest in preserving the flag as a symbol cannot justify this restriction.
Question 2: A federal statute strips federal courts of jurisdiction to hear habeas corpus petitions from enemy combatants held at Guantanamo Bay. The Supreme Court held this law:
- Constitutional because Congress has plenary power to define the jurisdiction of lower federal courts
- Unconstitutional because it suspends the writ of habeas corpus without the conditions required by Article I, Section 9 (Correct answer)
- Constitutional because enemy combatants are not 'persons' within the meaning of the Constitution
- Unconstitutional because habeas corpus can only be suspended by the President during wartime
Correct answer: Unconstitutional because it suspends the writ of habeas corpus without the conditions required by Article I, Section 9
In Boumediene v. Bush, the Court held that Guantanamo detainees had a constitutional right to habeas corpus and that Congress could not strip courts of jurisdiction without providing an adequate substitute.
Question 3: A state law requires pharmacies to dispense emergency contraception regardless of a pharmacist's religious objections. A pharmacist challenges the law under the Free Exercise Clause. The law is most likely:
- Unconstitutional because it substantially burdens sincerely held religious beliefs
- Constitutional because it is a neutral, generally applicable law that does not target religion (Correct answer)
- Unconstitutional because the state has no compelling interest in ensuring access to contraception
- Constitutional only if the state provides an exemption process for pharmacists
Correct answer: Constitutional because it is a neutral, generally applicable law that does not target religion
Under Employment Division v. Smith, neutral, generally applicable laws that incidentally burden religious practice are constitutional without requiring a compelling government interest.
Question 4: The Equal Protection Clause requires 'strict scrutiny' when a law discriminates based on:
- Age or disability
- Race or national origin (Correct answer)
- Gender or sex
- Wealth or poverty
Correct answer: Race or national origin
Strict scrutiny applies to laws that classify based on race, national origin, or alienage (a suspect class), requiring the government to prove a compelling interest and narrow tailoring.
Question 5: A city enacts an ordinance banning panhandling in all public parks. A homeless man challenges the ordinance. The court should evaluate this law under:
- Rational basis review because it regulates economic conduct
- Intermediate scrutiny because it discriminates against the poor
- Strict scrutiny because it restricts speech in a traditional public forum (Correct answer)
- The O'Brien test because panhandling is expressive conduct
Correct answer: Strict scrutiny because it restricts speech in a traditional public forum
Public parks are traditional public forums; content-based or overbroad restrictions on speech (including solicitation) in such forums receive strict scrutiny.
Question 6: Congress passes a law establishing a 'Department of Climate Policy' and grants its director, removable only for cause, authority to set binding emission standards. A regulated company challenges the director's for-cause removal protection. Under Seila Law LLC v. CFPB, the protection is most likely:
- Constitutional because Congress may structure independent agencies as it sees fit
- Unconstitutional because a single-director agency exercising significant executive power cannot be insulated from at-will presidential removal (Correct answer)
- Constitutional because climate regulation is a longstanding area of congressional expertise
- Unconstitutional only if the President formally objects to the removal restriction
Correct answer: Unconstitutional because a single-director agency exercising significant executive power cannot be insulated from at-will presidential removal
In Seila Law, the Court held that for-cause removal protection for the head of a single-director independent agency unconstitutionally limits the President's Article II removal power.
Question 7: A state law imposes a $500 annual fee on out-of-state trucking companies operating within the state but exempts in-state companies. The law is most likely:
- Constitutional as a valid exercise of the state's police power to regulate roads
- Unconstitutional as discriminatory economic protectionism under the Dormant Commerce Clause (Correct answer)
- Constitutional if the fee is rationally related to road wear caused by out-of-state trucks
- Unconstitutional only if Congress has expressly preempted state trucking fees
Correct answer: Unconstitutional as discriminatory economic protectionism under the Dormant Commerce Clause
Under the Dormant Commerce Clause, facially discriminatory laws that favor in-state over out-of-state economic actors are virtually per se unconstitutional unless the state proves no adequate nondiscriminatory alternative.
Multistate Bar Exam Constitutional Law 3
A state law prohibits any person from burning the American flag as part of a political protest.
A defendant is convicted under the statute.
The Supreme Court should: