MBE Tip of the Day: Constitutional Law
Welcome to our MBE tip of the day series. This “MBE tip of the day” post focuses on constitutional law.
You will see 25 scored constitutional law MBE questions on the Multistate Bar Exam. In this post, we will review a constitutional law question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these 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 “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
MBE Tip of the Day: Constitutional Law
MBE Tip of the Day Instructions:
Do your best to answer this constitutional law MBE 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, rule, and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Constitutional Law MBE Question
A disease infecting elm trees is wreaking havoc on the country’s environment. This disease is very easily spread once one tree becomes infected. To try to contain the disease, Congress passed a law mandating that all trees that have the disease be tested immediately upon showing signs of the disease and then cut down if the diagnosis is confirmed.
What is Congress’s best argument as to the law’s constitutionality, in whole or in part?
(A) It is constitutional under Congress’ power to act to promote the general welfare.
(B) It is constitutional under Congress’ broad necessary and proper power.
(C) It is constitutional under the police powers granted to both the states and the federal government.
(D) It is constitutional as applied to trees on federal lands.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Constitutional Law MBE Question
Subject: Constitutional Law
Legal Issue: Congressional powers
Legal Rule and Analysis: Congress has the broad power to regulate and dispose of federal property and land. When discussing Congress’ power to act “to promote the general welfare,” this is limited to Congress’ taxing and spending power. The text of the Constitution states: “The Congress shall have Power To lay and collect Taxes, … and provide for the common Defence and general Welfare of the United States…” The Supreme Court has interpreted this reference to acting in the general welfare to be a qualification on Congress’ taxing and spending power as opposed to a broad, separate power.
The necessary and proper clause is not a separate power in and of itself. Rather, its exercise must be tied to another enumerated power. When standing alone, it cannot justify any congressional action.
Finally, only the states have broad general police powers. Congress has no police power, with the logic being the states are more aware of what is in their citizens’ best interests. The exception to this general rule is when Congress is making a law that applies to federal lands.
In this case, Congress wishes to regulate the inspection and destruction of trees. As applied to every tree in the country, this would likely be unconstitutional as it does not fall under any enumerated power. However, Congress does have the power to regulate federal property and land.
Conclusion: Congress’ best argument would be that the law is constitutional as applied to trees on federal lands, as Congress has broad power to regulate and dispose of federal property.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
(D) is the correct answer. (A) is incorrect because Congress’ power to act to promote the general welfare is limited to taxing and spending. It is not a generalized power – rather it is a qualification on an existing power. (B) is incorrect because Congress does not have an independent necessary and proper power. Rather, the exercise of the necessary and proper power must be tied to another enumerated power. (C) is incorrect because only the states have a general police power. Congress does not have this power.
MBE Tip: Don’t get fooled by congressional powers that look tempting but actually don’t exist or are stated far too broadly! An answer choice that tries to justify a congressional action solely based on the necessary and proper clause or the power to act in the general welfare is almost always going to be wrong! These powers do not exist. Rather, they are tied to other enumerated powers. Be aware of how limited the list of enumerated powers actually is and then what tools can be used to expand those powers.
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: Congress has the power to regulate and dispose of federal property and land. There is no general police power, broad and independent necessary and proper power, nor the power to act to promote the general welfare outside of a taxing and spending situation.
MBE Tip: Don’t get fooled by congressional powers that don’t actually exist or are stated too broadly!
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
Looking for additional MBE help? If you are looking for MBE help, read our 10 expert MBE tips here. Check out our step-by-step guide to improving your MBE score, please review this post for an overview of tips. If you would like to have the next MBE tip emailed to you when we come out with another one, please fill out the form below.
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