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MBE Question of the Day – Answer
(B) is the correct answer.
Issue: Whether the state can exclude admission to practice as an attorney on the basis of any past association with any group that is subversive or advocates illegal acts.
Rule: Freedom of association is a fundamental right and the government may abridge it only if it has a compelling interest in doing so, and the government action abridging the right is narrowly tailored to the compelling interest. If the government attempts to punish someone for membership in an allegedly subversive group, the government may do so only if the person is actively affiliated with the group, knew of the group’s illegal or subversive activities or goals and had the intent to further the activities or goals. If a person is barred from a government benefit or membership in a regulated profession, but the bar does not exclude all three elements, then the law is overly broad, and not narrowly tailored. Analysis: This question is looking for the least helpful argument and gives four scenarios. Each answer must be analyzed separately. Note that if you apply the test above, the applicant will prevail because he is not actively affiliated with the group. Thus, the bar on his membership is likely overbroad and not narrowly tailored. In looking at the answers, cross out the choices that address one of the three factors listed above.
(B) is correct because it is the least helpful. It is permissible for the government to deny a benefit or bar membership in a regulated profession on the basis of a past knowledge of the illegal activities of an illegal or subversive group, if that person had the intent to further the illegal activities (i.e., is still actively affiliated with the group). (A) is incorrect as it is helpful in pointing out that the exclusion is not narrowly tailored: it sweeps into its grasp currently subversive and illegal activities and those that were done in the past. (C) is incorrect as it is again helpful in showing that the exclusion or rule is not narrowly tailored because it forbids mere association (which is highly protected constitutionally) without actually having an intent to do harm. (D) is incorrect as it addresses a related issue as to over-breadth of the law, thus not putting the person on notice. This is a helpful argument and thus is not the correct answer.