Constitutional Law MBE Notes

First, you have to make two determinations: (i) to whom does the clause apply (federal, states, or both?); and
(ii) What does the clause do (is it a source of power or prohibit something).

WHAT THE CONSTITUTIONAL CLAUSES DO:

 Commerce Clause: Applies to Federal Gov’t. Source of power. Congress can regulate four categories of
activities involving interstate commerce: (i) channels of interstate commerce, (ii) instrumentalities of
interstate commerce, (iii) articles moving in interstate commerce, and (iv) activities “substantially”
affecting commerce.
o In determining whether Congress can regulate an activity, you need only determine that:
 (i) the activity is commercial; and
 (ii) the activity “substantially affects” interstate commerce or the activity is part of a
general class of activities that, collectively, substantially affect interstate commerce.
 If both are true, then the statute is valid under the Commerce Clause.
o If the activity involves a non-commercial activity, the test is stricter.
 You must find a “pretty obvious connection” between the activity and interstate
commerce for the statute to be valid under the Commerce Clause.
o On the MBE, most Commerce Clause questions involve the sale or distribution of an item,
usually in a commercial setting.
o You shouldn't be surprised to see an MBE question in which Congress tries to make someone
who is not presently in the market for a good (e.g., broccoli) buy the good or pay a penalty; you
should answer that this isn't authorized by the Commerce Clause (but might be authorized by
Congress's power to tax and spend, if the money is collected by the IRS, as in the Affordable
Care Act situation).
o CAVEAT: State power under the Commerce Clause.
 The only time you analyze state statutes’ impact on interstate commerce under the
Commerce Clause is when there’s no relevant federal legislation. Then you have to
determine if a state regulation unduly burdens interstate commerce.
 If relevant federal legislation exists, then your analysis falls under the Supremacy Clause.
There are two questions you have to ask:
 (i) Did Congress expressly authorize or prohibit state regulation? If so, that
controls. If not —
 (ii) With no express authorization or prohibition by Congress, you have to
determine if the federal law preempts the state law. If the state law directly
contradicts the federal law, it will be preempted. If there's no direct conflict, you
have to determine if Congress intended the federal law to occupy the entire
field. Look at four factors to determine if that is the case: (1) whether the subject
matter is traditionally classified as local or federal; (2) how pervasive the federal
regulation is; (3) how similar the state and federal laws are (the more they
coincide, the more likely it is that federal law was intended to supersede state
law); and (4) whether there's a need for uniform federal regulation. You can
remember this with a mnemonic — PUSH (Pervasiveness, Uniformity, Similarity,
History).
 Note that preemption is an issue any time a state law conflicts with a federal law
(or is in the same field). However, it's most likely to be applied in the area of
interstate commerce.
 Welfare Clause: Applies to Federal Gov’t. Source of power. The Welfare Clause gives Congress the
power to tax and spend for the general welfare. Any federal legislation reasonably related to this
power will be valid. Tax and spend. That’s it. Congress does NOT have the power to enact any
legislation that promotes the general welfare of the nation under the Welfare Clause.
o Keep in mind that states do have the power to legislate for the general welfare, but only under
their police power, not under the Welfare Clause.
 Contracts Clause: Applies to states ONLY. Prohibition on the states. The Contracts Clause prohibits
states from passing any law that impairs the obligations of contracts. It’s usually correctly applied when
the state seems to be trying to escape its own obligations. As a prerequisite for protection under this
clause, the contract must have existed when the statute was passed. States can regulate contract
formation prospectively. Thus, when the “Contracts Clause” is an answer choice, the first thing you
should do is check to see if the contract in question predates the offending state. If not, then the
Contracts’ Clause is irrelevant.
o First, not all contract impairments are invalid under the Contracts Clause.
 State modifications of contracts will be permissible if the modifications:
 (i) serve an important and legitimate public interest; and
 (ii) are necessary to achieve that public interest; and if
 (iii) the contract impairment is reasonable under the circumstances.
o Also, keep in mind that the state has more leeway when the state itself was a party to the
contract. Beyond the rules on modification applicable to all contracts the state needn’t adhere
to a contract where it surrenders, from the start, an “essential attribute” of its sovereignty
(such as the police power or eminent domain).
 Privileges and Immunities Clauses (both of them):
o Privileges & Immunities of the Fourteenth Amendment- Applies to the States and is a
Limitation.
 This voids state enactments which clearly infringe on the privileges of national
citizenship. The protection is limited to the fundamental rights shared by all citizens.
 Usually a wrong answer on the MBE. When you see this as a possible answer for
invalidating a state statute, its usually a distractor.
o “Interstate” Privileges & Immunities Clause of Article IV- Applies to the States and is a
Limitation.
 This prevents states from discriminating against out-of-state citizens and residents in
matters concerning “essential activities” (pursuing one’s livelihood, owning property)
and basic rights (medical care, court access), unless the discrimination is closely related
to a substantial state purpose (protecting natural resources by the state) and there are
no less restrictive means available to achieve this purpose.
 Important to remember that this provision does NOT protect corporations or aliens –
just out-of-state, human, U.S. citizens.
 Eleventh Amendment: Applies to Individuals and is a Limitation. It is narrow and forbids most actions
in federal court by private citizens for damages against the states.
o The Eleventh Amendment doesn’t:
 Prevent suits by the federal gov’t against states;
 or suits by anyone against state subdivisions (cities or counties);
 or equity suits in federal court where a state official has violated the claimant’s federal
constitutional rights;
 or suits against a state official for money damages, as long as the damages are to be
paid out of the official’s own pocket.
 o Congress may not abrogate the Eleventh Amendment except where it passes a statute giving
private citizens the right to sue a state under the post-Civil War Amendments.
 Thirteenth Amendment: Applies to anyone (gov’t or private individuals). It is a limitation. The
Thirteenth Amendment outlaws any “badges or incidents” of slavery.
o It gives Congress the power to prohibit virtually any discrimination against blacks, or whites
(and it may cover other kinds of discrimination).
o It is the ONLY constitutional provision explicitly limiting private acts by individuals. No state
action is required.

DETERMINING THE VALIDITY OF STATUTES:

 Determine first if the statute is a federal or state statute.
 Analyze the validity of federal states or actions.
o Congress can only act 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.
o If Congress tries to legislate beyond its powers, it violates the Tenth Amendment. The Tenth
Amendment reserves to the states (and the people) those powers not expressly delegated to
Congress by the Constitution, nor prohibited to the states.
o There is NO federal police power. Only the states have police powers. Congress can use its
commerce power to do “police-like” things – prohibiting interstate transportation of stolen
property, misbranded goods, lottery tickets, etc.
 Determine the validity of state statutes. In order to be valid, a state enactment must meet a three-
part test:
o (i) the law must be enacted within the state’s powers (i.e. police powers);
 State legislation is enacted under the police powers if it involves the public
health,safety, welfare, or morals.
o (ii) it must not violate any person’s constitutional rights; and
 The two most frequent ways in which a state statute can violate the Constitution involve
due process and equal protection.
o (iii) it must not unduly burden interstate commerce.
 Congress has a complete lock on interstate commerce, but this doesn’t mean that a
state can’t place any burden on interstate commerce – it just can’t unduly burden
interstate commerce. Determining if an undue burden exists requires the application of
a balancing test:
 Is the burden on interstate commerce outweighed by legitimate interests of the
state in protecting its citizens, taking into account less burdensome alternatives?
 Also, the regulation must be non-discriminatory, unless the state has no
reasonable, non-discriminatory alternatives in its effort to protect health and
safety.

DUE PROCESS & EQUAL PROTECTION:

To determine whether Due Process or Equal Protection applies: see if a classification is built into the statute
(such as residents vs. non-residents, men vs. women, legitimate children vs. illegitimate children). A
classification is the hallmark of an equal protection problem.

 Equal Protection: If the statute is a federal statute, there’s no equal protection problem per se,
because the Equal Protection Clause, as part of the Fourteenth Amendment, does not apply to the
federal gov’t. (But equal protection principles are made applicable to the federal gov’t through the
 Fifth Amendment’s Due Process Clause – anything that would violate Equal Protection Clause if done
by a state gov’t would violate the Fifth Amendment Due Process Clause if done by the federal gov’t.).
o Applies only to government action (also called “state action” even when applied to federal
action), not to actions taken by purely private parties and in which government played no
substantial role. If a private individual or group of individuals is involved, you need to look for
two things:
 (i) a significant “nexus” of government involvement (whether the gov’t encourages or
benefits from the private conduct); and
 (ii) if the private conduct has a “public function” that’s normally exclusively reserved to
the states.
 If you answer YES to either, then there’s state action.
o Where discrimination is the issue, you also need to remember that, in order for a statute to be
held invalid, it must be found to be discriminatory in one of the following ways:
 It must be discriminatory on its face, or be facially neutral but unequally administered,
or have an impermissible motive — the intent to discriminate.
 The statute won't be found invalid if the discrimination results merely from its impact.
 Given these requirements, if you're faced with a newly enacted statute but you're not
told anything about its background, it can be held invalid only because it's invalid on its
face (since it hasn't been applied, evenly or unevenly, and since you know of no
improper motive).
o You should keep one element in mind when considering a problem where alienage (i.e., non-
citizenship) is the basis of the classification. A state needs only a rational basis for discriminating
against non-citizens in the context of essential state functions. Thus, a state can require that
state police, public school teachers, probation officers, and others be U.S. citizens.
 Due Process Clause: Where there’s no classification. Two types of due process problems: procedural
and substantive.
o Procedural Due Process: Addresses the fairness of the procedure used to deprive someone of a
significant interest, typically in property, but also in life (capital punishment) or liberty
(incarceration). In general when you’re dealing with procedural due process, you’ll ask if notice
and a hearing are necessary when a right is removed.
 The most common “property” question on the MBE involves government jobs. People
typically don't have a property right in continued public employment — unless
something in the facts of a question suggests otherwise (such as mention of tenure or of
a contract provision requiring that an employee can only be fired for “cause”). Note that
a person's mere expectations of maintaining benefits or a job aren't enough to make
their expectations into a property right — there must be a law — whether federal, state,
or local — under which the person has a legitimate claim to the benefits.
o Substantive Due Process: Becomes an issue when state action substantially interferes with a
“fundamental” right. If the right interfered with is “fundamental,” a statute must meet the
same “strict scrutiny” test as in equal protection law or it won’t be upheld. If the right is not
fundamental, the statute is subject to the same “rational relation” test as in equal protection.
 Only personal rights are considered “fundamental” under substantive due process:
 First Amendment rights
 The right of privacy
 The right to interstate travel
 Burden of Persuasion: If the impaired right is fundamental, then the burden of
persuasion is on the government to defend its action; if the right is non-fundamental,
then the burden of persuasion is on the person attacking the government’s action.
FREEDOM OF EXPRESSION:
Covers several distinct yet related rights: the freedoms of speech, press, assembly, and association.

 Freedom of Speech (or association): Any statute regulating these freedoms must contain narrow and
definite standards in order to be upheld. This involves the twin doctrines of overbreadth and
vagueness.
 Defamation, Obscenity, and “Fighting Words”: Not protected by First Amendment protection; as long
as a statute contains narrow and definite standards, such speech can be prohibited without meeting
the “compelling interest” test.

 Advocacy of unlawful conduct — the “clear and present danger” test. Government action can
prohibit advocacy of illegal conduct if it meets the “clear and present danger” test:
o (i) the advocacy is intended to produce or incite imminent illegal action, and
o (ii) the advocacy is likely to produce or incite such action, then it can be prohibited.
 Prior Restraints: A prior restraint is a governmental action that prohibits speech before it takes place.
These actions are presumptively invalid, due, generally, to their vagueness or to their placing too much
discretion in the hands of the public officials. Prior restraints can be valid, though, where the mere
existence of the communication is proven to create some special harm to society. Otherwise, in the
licensing situation, you should apply the time, place, and manner standards
 Commercial Speech: Speech whose primary goal is a commercial transaction. Although its somewhat
protected, it can be subject to greater regulation than non-commercial speech (i.e. it is permissible to
prohibit misleading ads).
 Public Speech – Time, Place, and Manner restrictions: Constitutionally protected speech is subject to
reasonable time, place, and manner regulations. In order to be valid, such a regulation:
o (i) Must be neutral as to the content of the speech, both on its face and as applied (“content-
neutral” requirement);
o (i) Must further a significant governmental interest not capable of accomplishment by less
restrictive means (e.g., maintaining traffic flow); and
o (iii) Must allow for adequate alternative channels for communicating the information.

 MBE questions will sometimes involve an attempt by a group or an individual to obtain a permit or
license, as required by an ordinance or regulation, before that group or individual can speak or
demonstrate. Be sure to apply the three-part test in this situation. Note that the ordinance or
regulation must set out the grounds for denying a permit in narrow and specific language that curtails
the discretion of local officials. (If it doesn't, the ordinance or regulation is probably overbroad.)

FREEDOM OF RELIGION:

Under the First Amendment, the government can neither outlaw nor seriously burden a person's pursuit of
religion (the Free Exercise Clause), nor endorse or support a particular religion (the Establishment Clause). The
upshot is that the government has to be religion-neutral. In general, any government action must conform
with the Lemon test:

 (i) the government action must have a secular (i.e., non-religious) purpose;
 (ii) the primary or principal effect of the action must not be the advancement of religion; and
 (iii) the government action must not foster excessive governmental entanglement with religion.
In general, when a law burdens the free exercise of religion, you have to perform a balancing test to
determine if the statute is valid. Weigh the magnitude of the burden against the strength of the state interest,
taking into account whether there are less burdensome means of accomplishing the state’s goal.

 The government can only regulate the practice of religion (gov’t cannot prohibit you from believing in a
specific religion).
 Only selected kinds of beliefs are covered. The First Amendment’s religion clauses only protect those
beliefs paralleling traditional religious views. The court simply cannot investigate the reasonableness of
your religious views.
 There’s a potential Establishment Clause problem any time the government helps out private, religious
schools, even if that help is the same as that given to public schools.
o First, the aid must be for secular (non-religious) instruction;
o Second, aid to post-secondary schools is more likely to be upheld than aid to elementary or
secondary schools because there’s less perceived risk of religious indoctrination of college-aged
people.

STANDING:
Standing is a prerequisite for every case. If the Plaintiff doesn’t have it, it doesn’t matter how worthwhile his
claim is; the case must be dismissed.
 Standing exists only if the action challenged has caused, or is imminently likely to cause, an injury to
the party seeking review.
 You are likely to get MBE problem in the area of taxpayer standing. As a general rule, taxpayers don’t
have standing. There is a very narrow exception to this rule, which typically only applies to cases
involving religion based on the Establishment Clause. Technically, a federal taxpayer can gain standing
to challenge spending matters if he can show two things:
o (i) that the federal tax was invalidly applied to him, making the injury personal, or
o (ii) that the expenditures in question both exceeded a specific constitutional limitation on the
taxing and spending powers, and that they were part of a federal spending program.
o This, as a rule, restricts taxpayer standing to religion cases. (Note that this is the rule for federal
taxpayers. For state and municipal taxpayers, the outcome is similar: They can normally
challenge state or municipal expenditures, limited typically to religion cases, e.g., local busing of
parochial school students.)

 You should also know when a plaintiff has standing to assert someone else's constitutional rights in
federal court. In general, this is possible only where the plaintiff is injured because someone else's
constitutional rights have been violated, or where those who are injured simply cannot assert their
own rights.

JURISDICTION:
First, keep in mind that Congress has the power to create courts inferior to the Supreme Court, and, as a
result, Congress can control the jurisdiction of those lower federal courts, as long as it stays within the
boundaries of Article III (e.g., Congress couldn't give federal courts the power to render advisory opinions).
Congress can also control the appellate jurisdiction of the Supreme Court.
 The Supreme Court can hear lower-court cases that decide a matter of federal statutory or federal
constitutional law. So, the Court has power to hear:
o (I) Appeals from a state’s highest court:
  Cases where a state's highest court has held a federal statute/treaty invalid or held a
state statute valid in the face of a claim of invalidity under the Constitution or a federal
law.
o (II) Appeals from a lower federal court:
 Cases where a lower federal court decided an issue of federal statutory law, or an issue
of federal constitutional law.

 The Supreme Court may not hear the case if there was an “independent and adequate” state-law
ground for the decision. That is, suppose a state court opinion rests on two independent grounds, one
of which is based on federal law and the other on state law. The Supreme Court does not have
jurisdiction to hear the appeal if the state- law portion of the opinion is by itself sufficient to sustain the
judgment.
 Federal courts will not address “political questions.” Political questions are those issues the
Constitution commits to other governmental branches, as well as issues the judicial process is
inherently incapable of resolving and enforcing. Foreign affairs are the most obvious.
 Federal courts will not issue “advisory opinions.” An advisory opinion is one that answers a legal
question when none of the parties before the court either has suffered or will face specific injury
related to that question; remember, a federal court has jurisdiction only over “cases and
controversies.”
 Keep in mind other factors that contribute to whether a federal court will hear a claim. Specifically:
o The issue can be neither moot nor unripe.

SEPARATION OF POWERS:
Congress makes the laws, the President executes the laws, and the judiciary interprets the laws. For instance,
Congress can't determine the constitutionality of its enactments, and it can't institute or enforce its own laws;
the President, who has executive powers, only has legislating abilities to the extent that Congress delegates
such powers to him.

 Bills of Attainder: A “bill of attainder” is a law, either federal or state, that punishes, without a trial,
past or future conduct of specifically named individuals or ascertainable groups. Bills of attainder are
impermissible. Bills of attainder are an occasional answer choice on the MBE. Just remember the
hallmark of a bill of attainder: punishment on the basis of political beliefs or activities.

EXAM TACTICS:

1. When asked the validity of a law, check first to see if its’a a federal or a state law.

2. When asked about a plaintiff’s standing, ignore substance. Remember what standing requires: The plaintiff
must either have suffered or be imminently likely to suffer an injury due to the challenged action. To
determine standing, a court looks solely at whether the plaintiff is legally qualified to press a claim, not
whether his claim has merit.

3. Avoid answers which state that a statute is constitutional because the plaintiff’s interest is a “privilege, not a
right.” Sometimes an answer choice will suggest that a statute is valid, in the face of a due process challenge,
because plaintiff’s interest is a “privilege” and not a “right” – this is almost certainly a distractor.

4. What to do with economic regulation: When you’re faced with a purely economic or social statute,
remember that there’s pro0bably no serious due process or equal protection problem, because the statute
will be subject only to the “rational relation” test.