How the MBE Approaches Con Law

Con law is a broad subject, and the MBE’s coverage of it is broad as well. You’ll see questions about all the major topics you encountered in your con law courses: equal protection, due process, federalism, and separation of powers. You’ll also see questions about federal jurisdiction, which is usually taught in civil procedure but does involve some constitutional components.

In all of these areas, the MBE really focuses on the rules—not the broad principles, historical context, or policy considerations you might’ve learned in law school. Some students find con law challenging because of its fuzzy tests like the tiers of scrutiny and because professors emphasize the nuance and uncertainty. But that kind of thing doesn’t lend itself well to MBE-style multiple-choice questions, which have to be much clearer about what’s right and what’s wrong. The MBE does a good job reducing con law to those clear-cut options. Often, it does so by asking what the applicable rule is (which is straightforward) rather than how it applies (which might be debatable).

How You Should Approach Con Law on the MBE

Spotting a Con Law Question

Con law questions appear in a lot of different forms on the MBE. Some of them are easier to recognize than others. You’re definitely operating in the realm of con law if the stem asks you, “Is this action constitutional?” or “What is the rule that applies to the plaintiff’s equal protection argument?” But even if the question doesn’t explicitly declare itself, context clues will generally signal when you should apply con law doctrine, rather than principles from torts or property.

A question is probably constitutional in nature if it entails one of three things:

• The validity of a government action, like a statute or regulation
• Interactions involving different parts of government (e.g., between the legislative and executive branches or between a state government and a federal agency)
• A person facing legal consequences because of speech, religious practice, race, or some other suspect classification that implicates rights-based con law

On the other hand, a question is definitely not about con law if it involves only private parties, since con law is about the structure of government and the conduct of government actors.

Two-Step Strategy

The best way to approach a con law question is to consider two central issues.

First, does the federal government have the power to do what it’s doing? Since the federal government can only exercise enumerated powers, the threshold issue is whether some constitutional provision authorizes the government action. Ask yourself if a statute fits within the Commerce Clause power or if Article III confers jurisdiction over some dispute to the federal courts. If you can’t identify a constitutional source for the power being exercised, the government action is probably invalid.

If you find that the federal government does have the power to act, ask if there’s some limitation that prevents it from doing so in this particular case. Most often, the limitation will be rights-based and will implicate a principle like free speech, equal protection, or due process. You will also see structural limitations on government power, like anti-commandeering or separation of powers.

Nearly all con law questions turn on one of these two issues, so if you start with this analysis, you’ll set yourself up for success.

Red Herrings to Watch For

A few concepts reliably crop up as wrong answers on the MBE. Watch out for them, and be skeptical of them because they are very rarely right.

General welfare

The MBE often presents the General Welfare Clause of the Constitution as a possible basis for congressional action. But there is no “general welfare” power at the federal level. The clause actually appears as part of a limitation on Congress’s ability to tax and spend: it can exercise those powers only for the general welfare, to satisfy the country’s debts, or to fund defense. So, if your question involves the spending power, “general welfare” might be your answer. If it doesn’t, you can almost automatically cross this phrase off your list.

Privileges or immunities

The same is true for the Privileges or Immunities Clause of the Fourteenth Amendment. The MBE often includes this clause as an answer choice in questions about rights claims, but it is rarely correct because the Supreme Court has given it such a narrow reading. Unless your question implicates the “right to travel,” the Privileges or Immunities Clause is almost certainly the wrong answer.

Tenth Amendment

The Tenth Amendment often pops up as an answer choice in federalism questions. But according to the Supreme Court, the amendment just states the “truism” that the federal government is limited to enumerated powers. There will almost always be a better answer.

Triage for Tough Questions

If you don’t know the answer to a con law question, start looking to narrow your options. Most answer choices have two parts: a “yes” or “no” component that asks you to select the right result, and a “because” component that asks you to choose the right reason. If you have a good sense that the right result is “yes,” ignore the two “no” answers, and try to decide which “yes” answer includes the right reason. On the other hand, if you don’t know what the result should be, look at the “because” portions and eliminate any answers that state the wrong rule before taking a guess.

If neither the result nor the rule seems clear, start by crossing out any “red herring” answers that, based on historical trends, aren’t likely to be right. In addition to the three options we discussed above (general welfare, privileges or immunities, and the Tenth Amendment), pay attention to choices that involve equal protection. That doctrine will only be correct if you see an obviously suspect classification in the fact pattern, like a regulation based on race, sex, or gender.