How to attack Con Law MBE questions

Question 1

The two common types of con law questions

Answer 1

1. Whether a statute is valid
2. The best or worst argument for upholding or overturning a statute.

Question 2

First two questions to ask yourself when faced with a constitutional clause

Answer 2

1. To whom does the clause apply? (fed gov, states, or both)
2. What does the clause do? (Is it a source or prohibition of power)

Question 3

How to determine the validity of a statute

Answer 3

1. Determine if it’s a federal or state statute
2. If federal, use enumerated powers rule
3. If state, do state test

Question 4

Enumerated Powers Rule

Answer 4

• Congress can act only pursuant to its enumerated powers under the Constitution.
• Thus, any valid federal statute must be rationally related to an enumerated power, or it must be necessary and proper to effectuate an enumerated power.

Question 5

List of Major Congressional Powers

Answer 5

CREATES DICE

• Civil Rights
• Elections (Congressional)
• Admiralty
• Taxation
• Eminent Domain
• Spending/Taxing for General Welfare
• Defense
• Interstate Commerce
• Citizenship
• External (Foreign) Affairs

Question 6

How to determine the validity of a state statute

Answer 6

3 part test:

1. The law must be enacted within the state’s powers
   
   • (e.g., police powers);
2. It must not violate any person’s constitutional rights;
   
   • e.g. DP or EP
3. It must not unduly burden interstate commerce.