Constitutional Law MBE

Question 1

Power of the Judiciary

Answer 1

Federal courts have the power to hear cases and controversies that are based on a federal question, diversity cases, and admiralty and maritime cases.

Question 2

Standing requirement

Answer 2

Standing: An individual needs an injury in fact, causation, and redressability in order to file a lawsuit. The case must be ripe and cannot be moot. A court will not render advisory opinions!

Question 3

Standing as an Organization

Answer 3

Organization: For an organization to have standing, it must show: a member has standing, the member’s injury is related to the purpose of the organization, and individual members are not required to participate in the lawsuit.

Question 4

Supreme Court review of decisions in general

Adequate and independent state grounds:

Answer 4

The Supreme Court can review decisions of the federal courts of appeals and federal decisions made by state courts. The Supreme Court can hear the latter type of case if the case involves a matter of federal law, it is a final judgment from the highest state court authorized to hear the case, and there are no adequate and independent nonfederal (state) grounds on which the state court decision is based.

Tip: if a state court decision rests on two grounds (a state ground and a federal ground) and the Supreme Court’s reversal of the federal decision would not change the outcome, the Supreme Court cannot hear the case.

Question 5

Political question:

Answer 5

Federal courts will not hear political questions (those given to another branch of government by the Constitution).

Tip: Examples include: “republican form of government” clause challenges, military or foreign affairs decisions, or impeachment.

Question 6

Pending state court proceedings

Answer 6

: federal courts should not enjoin pending state court proceedings unless the case is brought in bad faith or for harassment purposes.

Question 7

Powers of Congress and passing laws

Answer 7

Congress makes the laws but needs bicameralism (approval by both houses) and presentment (approval by the president) in order to pass a law.

Question 8

Congress gets its power from the Constitution. These powers include:

Answer 8

Necessary and proper power: Tip: this must be combined with another power.
• Taxing and spending power:
• Commerce power:
• War and defense power:
• Enforcement power:
• Other powers: admiral and maritime power, property power, investigatory power, postal power, copyright and patent power, power to coin money, power to impeach, and the power to delegate powers.

Question 9

Necessary and proper power:

Answer 9

Tip: this must be combined with another power.

Question 10

Taxing and Spending Power

Answer 10

• Taxing and spending power: Congress may tax and spend for the general welfare. Tip: it cannot “act” for the general welfare.

Question 11

Commerce Power

Answer 11

• Commerce power: This is very broad. Congress can regulate anything economic and anything noneconomic that substantially affects interstate commerce.

Question 12

War and Defense power

Answer 12

• War and defense power: Congress has the power to declare war.

Question 13

Enforcement power: post civil war amendments

test

Answer 13

• Congress may enact legislation that is “congruent and proportional” to the Thirteenth Amendment (which outlaws slavery and badges of slavery), the Fourteenth Amendment (which contains the Equal Protection and Due Process Clause) and Fifteenth Amendment (which prohibits states from enacting racially discriminatory voting laws).

Question 14

Other powers of congress

Answer 14

• Other powers: admiral and maritime power, property power, investigatory power, postal power, copyright and patent power, power to coin money, power to impeach, and the power to delegate powers.

Question 15

Tip: Congress does not have police powers except over (MILD)

Answer 15

Military bases,
Indian territories,
federal Lands, and
D.C.

Question 16

legislative veto

Answer 16

A legislative veto is unconstitutional. This occurs when Congress tries to overturn action by the executive branch without bicameralism and presentment.

Question 17

T or F Congress can delegate legislative power to executive agencies or the judiciary. However, the power cannot be uniquely delegated to Congress by the Constitution (e.g., the power to declare war).

Answer 17

True

Question 18

Powers of the President: general description

Answer 18

The President executes the laws and must enforce laws that are passed even if he disagrees with them.

Question 19

The president has the following powers

VET CAP

Answer 19

• Veto power:
Enforcement of laws
Treaties

Commander in Chief of the Armed forces- war powers
• Appointment and removal power:
• Pardons:

• Foreign affairs:
• Immunity:

Question 20

• Veto power:

Answer 20

The President can veto a law (but this can be overridden by a 2/3 majority vote by Congress). A line item veto (crossing out certain portions of the bill that the President does not approve of) is not permitted.

Question 21

• Appointment and removal power:

Answer 21

The President has the power to appoint federal judges, ambassadors, and other principal officers of the United States, with the advice and consent of the Senate. The President may also remove executive officials without cause, at will unless Congress limits removal for “good cause.”

Question 22

• Pardons:

Answer 22

the President may grant pardons for federal crimes.

Question 23

War power:

Answer 23

The President can respond to attacks or emergency situations. The President cannot declare war.

Question 24

Foreign affairs

Answer 24

the President has broad foreign affairs powers.

Question 25

Treaties and executive agreements:

Answer 25

The President may enter into treaties with 2/3 Senate approval. The President may enter into executive agreements with the heads of foreign countries.

Question 26

Immunity:

Answer 26

the President is absolutely immune from civil suits for damages for any official acts as President (but not purely personal or pre-presidential acts).

Question 27

Eleventh amendment

Answer 27

Eleventh Amendment: A private individual cannot sue a state for money damages in federal court.

Tip: this is usually the wrong answer on the MBE.

Question 28

Congress’s power over the courts

Answer 28

Congress cannot eliminate the Supreme Court or divide it. However, Congress may establish lower federal courts and give those courts jurisdiction to hear the same types of cases that go to the Supreme Court (and it has done so for all cases besides cases between states).

Question 29

Supreme Court’s jurisdiction

Answer 29

Original and exclusive jurisdiction for cases between states. Tip: remember that only the Supreme Court can hear cases between states.

Question 30

Original jurisdiction over any case that involves (APS)

Answer 30

Ambassadors, Public ministers and consuls, or where the State is a party.

Question 31

Appellate jurisdiction

Answer 31

Appellate jurisdiction over a final judgment from the highest state court if the case has a federal issue and there are no adequate and independent state grounds. (There is also rare mandatory appellate jurisdiction.)

Question 32

Supremacy Clause:

Answer 32

Pursuant to the Supremacy Clause, federal law is supreme and prevails over state law. States may not pass laws

(1) that conflict with federal law,
(2) that interfere with a federal objective, or
(3) in areas where Congress has intended to “occupy the field.”

Question 33

Federal immunity from state law

Answer 33

: A state cannot regulate or tax the federal government. However, a state may tax federal employees the same that they tax everyone else.

Tip: This is a bar exam favorite. E.g., the federal government does not have to abide by state environmental regulation because of federal immunity.

Question 34

Tenth Amendment:

Answer 34

Any powers not given to the federal government are given to the states.

Tip: This means the federal government cannot compel states to enforce federal statutes. (However, the federal government is permitted to “incentivize” states to enforce such statutes by offering money to the states.)

Question 35

Restriction on state powers

The Article IV Privileges and Immunities Clause:

Answer 35

States may not discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means.

Tip: This is usually the issue when a state gives a hiring preference to its own citizens and discriminates against out-of-state citizens. Employment is only a fundamental right for purposes of Article IV.

Question 36

The Fourteenth Amendment Privileges or Immunities Clause:

Answer 36

States are not allowed to pass laws that would restrict access to vital governmental services (e.g., welfare benefits) to newcomers because such laws would interfere with a citizen’s fundamental right to travel from state to state.

Tip: this is usually the wrong answer on the MBE.

Question 37

Dormant Commerce Clause

Exception

Answer 37

If a state passes a discriminatory law strict scrutiny applies. (one that treats out-of-state parties differently than those in the state, e.g., “all out-of-state sellers of milk must bottle their milk in state”),

The law will be struck down unless the state can show the law was necessary to serve a compelling state interest and there was no reasonable nondiscriminatory alternative. The law is usually struck down.
If a state passes a law that is a burden on commerce (in-state and out-of-state parties are treated the same, e.g., “everyone driving through the state must have a certain kind of tire”), a balancing test is used. The law is more likely to be upheld.

Note: A commonly tested exception is where the state acts as a market participant—that is, where a state acts as a business rather than a regulator.

Tip: Remember that these rules apply to the states. Congress can pass laws that discriminate against commerce.

Question 38

Full Faith and Credit Clause:

Answer 38

states must enforce judgments of other states if the court that rendered the judgment had jurisdiction and the judgment was a final judgment on the merits.

Question 39

Content based restriction on free speech:

Test:

unless

Answer 39

strict scrutiny applies unless

1. Symbolic speech (regulating conduct; e.g. nudity): a law that regulates conduct and places an incidental burden on speech is allowable if the regulation is narrowly tailored to an important governmental interest and it is unrelated to the suppression of the speech.
2. unprotected or less protected speech: Unprotected speech (clear and present danger, fighting words, true threats, obscenity)
   a. less protected speech: Commercial speech, school speech, sexual or indecent speech

Question 40

Commercial speech:

Answer 40

(1) the speech must be lawful and not misleading,
(2) the statute must serve a substantial governmental interest,
(3) the statute must directly advance that interest, and
(4) the statute must be narrowly tailored (not more excessive than it needs to be).

Question 41

School speech:

Answer 41

public school students have free speech rights but speech may be regulated if the regulations are reasonably related to legitimate pedagogical (educational) concerns.

Question 42

sexual or indecent speech:

Answer 42

The regulation must:

(1) serve a substantial governmental interest, and
(2) leave open reasonable alternative channels of communication.

Question 43

Viewpoint based free speech restriction

Answer 43

Test: strict scrutiny applies normally struck down

Question 44

Time, place, manner (content-neutral or-based) restriction on free speech
Public forum
Traditional public forum

Test for:

Answer 44

In a Public forum: designated or limited public forum (eg. schools with after school clubs)
Traditional public forum (e.g., streets, sidewalks, and parks)

Test: the regulation must (1) be content neutral, (2) be narrowly tailored, and (3) leave open alternative channels of communication.

Question 45

Time, place, manner (content-neutral or-based)

Private forum

Test

Answer 45

Private forum (military bases, airports, and prisons)

Test: the regulation must (1) be viewpoint neutral, and (2) have a reasonable relation to a legitimate government interest.

Question 46

Prior restraint on free speech

test

Answer 46

Prior restraint: When the government prevents speech before it is communicated.

Test Strict scrutiny applies.

Tip: the law is usually struck down.

Question 47

Speech Overbreadth:

Answer 47

a law is unconstitutional on its face if it prohibits substantially more expression than is necessary.

Question 48

Speech: Vagueness:

Answer 48

a statute is vague and unconstitutional on its face if a reasonable person could not tell what speech is prohibited and what speech is allowed (e.g., a statute that prohibits words that “tend to breach the peace” is vague and unconstitutional).

Question 49

Due process

two types:

Answer 49

The Due Process Clause is found in the Fifth Amendment and applies to the states through the Fourteenth Amendment.

procedural and substantive due process

Question 50

Procedural due process

Answer 50

The government may not intentionally deprive someone of life, liberty, or property without notice and an opportunity to be heard.

Tip: property includes public education and public employment that is not at-will employment.

Question 51

Substantive Due process

Test:

Answer 51

Strict scrutiny for fundamental rights: the burden is on the government to show the law is necessary for a compelling interest.

Question 52

Substantive Due process: privacy rights (MCSOFA =

Answer 52

Marriage, 
Contraception and procreation, 
Sexual conduct, 
Obscenity in the home, 
Family relations, 
Abortion), 
the right to vote, the right to interstate travel, and the right to refuse medical treatment.

Question 53

Substantive due process for everything else that is not a fundamental right

Test:

give examples

Answer 53

Rational basis for everything else: the burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.

► E.g., Right to education, welfare benefits, and all economic regulations.

Tip: remember that the right to education is not a fundamental right and undergoes rational basis scrutiny.

Question 54

Equal protection clause applies to the states

TEST:

Answer 54

The focus is on the class that is being discrimi- nated against.

The Equal Protection Clause applies to the states through the Fourteenth Amendment and the federal government through the Due Process Clause of the Fifth Amendment.

Strict scrutiny: the burden is on the government to show the law is necessary for a compelling government interest.

Question 55

Equal protection strict scrutiny FAR

Answer 55

E.g., (FAR) fundamental rights when a
class is involved,
Alienage if a state is discriminating (unless the public function doctrine applies, in which case the standard is rational basis), and
Race.

Tip: the public function doctrine allows states to exclude noncitizens from certain government
jobs (e.g., public school teachers and police officers).

Question 56

Equal protection: intermediate scrutiny applies to GI

Answer 56

Intermediate scrutiny: the burden is on the government to show the regulation is substantially related to an important government interest.
► E.g., (GI) gender and illegitimacy.

Question 57

Equal Protection: Rational basis test

classifications based on?

Answer 57

: The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.
► E.g., classifications based on age, education, and wealth.

Tip: the plaintiff usually loses!

Question 58

Other Rights

The Contracts Clause:

Answer 58

A state may not pass legislation that substantially impairs preexisting contracts unless the law serves an important and legitimate public interest and it is reasonable and narrowly tailored to promoting that interest.

Tip: this is usually the wrong answer on the MBE.

Question 59

Ex post facto laws:

Answer 59

Unconstitutional ! neither states nor the federal government may pass legislation that retroactively alters a criminal law in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

Question 60

Bill of attainder:

Answer 60

neither the state nor the federal government may pass legislation that specifically identifies people to be punished (civilly or criminally) and imposes punishment without a judicial trial.

Question 61

Unconstitutional conditions: on a receipt of a government benefit

Answer 61

the government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutionally protected right.

Question 62

Takings Clause

Answer 62

Takings: The government may not take private property for public use without just compensation. A taking can be physical or regulatory.

A taking is regulatory if a regulation deprives one of all economic value. An unconstitutional exaction is also a regulatory taking.

Question 63

State action requirement:

If a plaintiff sues under the First, Fourteenth, or Fifteenth Amendments (e.g., for free speech, due process, equal protection issues, or voting rights), the plaintiff must show _______ _________. explain

Answer 63

state action.

State action is present if the state passes a law, if a private actor performs a “traditional and exclusive” government function (e.g., a company town), or if private action is closely controlled by the state.