You will see 25 Constitutional Law MBE questions on the Multistate Bar Exam.
We will be posting a Multistate Bar Exam question once every couple days along with an answer. This series lasts throughout a bar exam administration and continues when the next administration starts. Note that these are MBE questions that students commonly get wrong. If you can master these MBE questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post will cover one highly-tested area of substantive law as well as an important MBE strategy. Today, we will review a Constitutional Law MBE question on a topic that is highly-tested. We will also go over how to eliminate incorrect answer choices if you are not sure what the answer choice is.
Do your best to answer this question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices.
Then, you can uncover the Constitutional Law MBE answer as well as read more about our MBE strategy of the day — to spend more time on the topics that are highly-tested.
Constitutional Law MBE Question:
The President of the United States recognized a new Indian tribe that had not been recognized by the United States government prior. An anthropologist filed suit in an appropriate federal court asking the court to set aside the President’s recognition of the tribe. The anthropologist currently has a very profitable contract with a university that will terminate as soon as the tribe is recognized by the United States as an official Indian tribe.
What is the outcome of the suit?
(A) It will be dismissed because the anthropologist cannot prove an injury in fact.
(B) It will be dismissed because the anthropologist cannot prove the elements of third-party standing.
(C) It will be dismissed because it constitutes a non-justiciable political question.
(D) It will be decided on the merits.
Subject:
Legal Issue:
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Conclusion:
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to Constitutional Law MBE Question:
Common Mistake: Students forget that questions about foreign relations almost always constitute political questions.
Subject: Constitutional Law
Legal Issue: May the court hear the case? Does the anthropologist have standing to bring it? Is it a political question?
Legal Rule and Analysis: Foreign affairs decisions made by the President are not going to be heard in court as they are nonjusticiable political questions. This includes recognition of tribes, recognition of other countries, the decision to “respond to an emergency attack” or invade another country. The court will not hear the case. This is a very highly-tested Constitutional Law political question issue!
The theory is that those decisions are reserved for the president. Also, the court wants to U.S. to “speak with one voice.” It would be unusual if the president said one thing, then the court overturned the president.
Other political questions include: challenges made based on the “republican form of government” clause, political gerrymandering (i.e. drawing voting districts on political grounds), the age and qualifications of Congress, and impeachment procedures (these are given to the Senate). None of these will be reviewed by a court because they are all given to another branch of government and considered to be a “political question.”
Note that the anthropologist would otherwise have standing. It will suffer an injury in fact that is caused by the recognition of the tribe and would be redressed by a favorable decision.
Conclusion: The court will not hear the case on political question grounds.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:(C) is correct. (A) is incorrect because the anthropologist will suffer an injury in fact (loss of money). The facts go out of their way to tell you that the anthropologist has a profitable contract she will lose out on. (B) is not correct because the anthropologist does not need to show third-party standing. It is enough for the anthropologist to show that she herself is injured. (D) is incorrect because the court will not hear the case due to the political question doctrine.
MBE Tip: When you are in between two (or more) answer choices, go back to the facts! We notice that when students are in between two answer choices, they spend so much time staring at the answer choices and convincing themselves that one is right, that they forget to simply go back to the facts to see if anything new stands out!
Most students go between (A) and (B) or (C) and (D). If you are doing this, go back to the facts. If you reread the facts, you will notice that the anthropologist will clearly suffer an injury (loss of money), so you can eliminate (A). Then, ask yourself, “does the anthropologist even need third-party standing?” After all, if it is a political question, the court won’t hear it at all (even if the anthropologist does in theory have standing. You can eliminate (D) once you decide that the question is non-justiciable.
MBE Tip for Constitutional Law Questions Particularly: Quantity is important when it comes to Constitutional Law questions! Many questions are based on real cases, so if you are exposed to enough of them (through practice!) you will start to see your score increase. Quantity, to some degree, is important to get better at MBE questions generally. This is exaggerated with Constitutional Law questions though, given that they tend to make questions based on real cases.
Key Takeaways for the day:
Takeaway for the Law: Foreign affairs (such as the recognition of tribes or federal governments) are nonjusticiable political questions. Other political questions include: challenges made based on the “republican form of government” clause, the age and qualifications of the members of Congress, political gerrymandering (i.e. drawing voting districts on political grounds), and impeachment procedures. None of these will be reviewed by a court because they are all given to another branch of government and considered to be a “political question.”
Takeaway for Practicing: MBE Tip: When you are in between two (or more) answer choices, go back to the facts! We notice that when students are in between two answer choices, they spend so much time staring at the answer choices and convincing themselves that one is right, that they forget to simply go back to the facts to see if anything new stands out!
MBE Tip for Constitutional Law Questions Particularly: Quantity is important when it comes to Constitutional Law questions! Many questions are based on real cases, so if you are exposed to enough of them (through practice!) you will start to see your score increase.
If you would like to see “MBE tip of the day” posts from prior days, please click on the links below:
MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series! Today, we will be covering a Constitutional Law MBE question. Even though most students do not hate Constitutional Law questions (generally, Real Property and Contracts are hated more!) Constitutional Law has been among the subjects that students score the lowest on the real bar exam. Thus, it is important to have a good strategy to tackle Constitutional Law MBE questions.
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