Multistate Bar Examination (MBE) Constitutional Law Syllabus

What is the appointment and removal power of the President?

The President appoints principal officers with Senate advice and consent; Congress may vest appointment of inferior officers in the President, courts, or department heads. The President may generally remove executive officers at will, but Congress may limit removal of officials with quasi-judicial/quasi-legislative roles to 'good cause.'

What is the rule against legislative vetoes and line-item vetoes?

Congress cannot reserve a 'legislative veto' to overturn executive action without bicameralism and presentment (INS v. Chadha). The President may not exercise a line-item veto—a bill must be signed or vetoed in whole (Clinton v. City of New York).

What does the Supremacy Clause provide?

Article VI makes the Constitution, federal laws, and treaties the supreme law of the land; valid federal law preempts conflicting state law, and state officials are bound by it.

What is the difference between express and implied (field and conflict) preemption?

Express preemption: the federal statute explicitly states it displaces state law. Field preemption: federal regulation is so pervasive that it occupies the field. Conflict preemption: compliance with both is impossible, or state law obstructs federal objectives.

What is the Dormant Commerce Clause?

The negative implication of the Commerce Clause: even without congressional action, states may not unduly burden or discriminate against interstate commerce.

What test applies to a state law that discriminates against out-of-state commerce under the Dormant Commerce Clause?

It is virtually per se invalid unless the state shows (1) an important non-economic local interest and (2) no reasonable nondiscriminatory alternatives—strict scrutiny.

What test applies to a nondiscriminatory state law that burdens interstate commerce (Pike balancing)?

The law is valid unless the burden on interstate commerce clearly exceeds the local benefits (Pike v. Bruce Church balancing).

What are the two exceptions that allow state discrimination against interstate commerce?

(1) Congressional consent (Congress may authorize the discrimination); and (2) the market participant exception—a state acting as a buyer/seller (not regulator) may favor its own residents.

What does the Privileges and Immunities Clause of Article IV protect, and against what?

It prohibits state discrimination against out-of-state citizens regarding fundamental rights—especially civil liberties and the pursuit of livelihood/commercial activity—unless the state has a substantial justification and no less restrictive means.

Who can invoke the Article IV Privileges and Immunities Clause, and who cannot?

Only individual U.S. citizens (out-of-state) can invoke it. Corporations and aliens cannot. (Contrast with the Dormant Commerce Clause, which protects corporations and aliens but allows the market participant exception.)

What does the Privileges or Immunities Clause of the Fourteenth Amendment protect?

It protects rights of national citizenship (e.g., the right to travel/relocate and be treated as a new state's citizen). It is largely dormant—Saenz v. Roe revived it for the right to travel.

What is the rule on state taxation and regulation of the federal government (intergovernmental immunity)?

States may not directly tax or regulate the federal government or its instrumentalities without congressional consent (McCulloch), and may not impose taxes that discriminate against the federal government or those it deals with.

What four requirements must a state tax on interstate commerce satisfy (Complete Auto test)?

(1) Substantial nexus with the taxing state; (2) fair apportionment; (3) no discrimination against interstate commerce; and (4) fair relationship to services provided by the state.

What is the State Action Doctrine?

The Constitution's individual-rights guarantees (other than the 13th Amendment) apply only to government action, not purely private conduct. A private actor must be shown to be a state actor for constitutional claims to apply.

What are the two main tests for finding state action in private conduct?

(1) Public function—a private entity performing a task traditionally and exclusively done by the government; and (2) Entanglement—the government significantly encourages, facilitates, or is so entwined with the private conduct that it is fairly attributable to the state.

What are the three elements of a procedural due process claim?

(1) State action (2) depriving a person of life, liberty, or property (a legitimate entitlement, not mere expectancy), (3) without constitutionally adequate procedures.

What is the Mathews v. Eldridge balancing test for what process is due?

Courts weigh (1) the private interest affected, (2) the risk of erroneous deprivation under current procedures and the value of additional safeguards, and (3) the government's interest, including administrative burdens and costs.

What is substantive due process and what two tiers of review apply?

Substantive due process protects against arbitrary government interference with rights regardless of procedures. Fundamental rights get strict scrutiny; non-fundamental (economic/social) interests get rational basis review.

Which rights are 'fundamental' for substantive due process purposes?

Privacy-related rights (marriage, procreation, contraception, family relations, child-rearing, same-sex marriage), the right to travel, and the right to vote—plus most Bill of Rights guarantees incorporated against the states.

State the strict scrutiny standard and who bears the burden.

The law must be necessary to achieve a compelling government interest and narrowly tailored (least restrictive means). The government bears the burden of proof.

State the rational basis standard and who bears the burden.

The law is upheld if it is rationally related to a legitimate government interest. The challenger bears the burden; the law is presumed valid.

State the intermediate scrutiny standard and who bears the burden.

The law must be substantially related to an important government interest. The government bears the burden of proof.

What is the equal protection framework and which classifications trigger which level of scrutiny?

Strict scrutiny: race, national origin, alienage (state laws). Intermediate scrutiny: gender and legitimacy. Rational basis: all others (age, disability, wealth, economic regulation).

What must be shown to trigger heightened equal protection review for a facially neutral law?

Both a discriminatory effect AND a discriminatory intent/purpose. Disparate impact alone is insufficient.

What are the elements of a regulatory taking, and when is just compensation required?

A taking occurs with a permanent physical invasion (per se taking, Loretto) or when a regulation denies all economically viable use (Lucas). Otherwise courts apply the Penn Central balancing of economic impact, interference with investment-backed expectations, and the character of the government action. Compensation equals fair market value.

What is the difference between content-based and content-neutral speech regulation, and the applicable tests?

Content-based regulations (targeting subject matter or viewpoint) are presumptively invalid and get strict scrutiny. Content-neutral regulations are reviewed under intermediate scrutiny.

What categories of speech receive no or reduced First Amendment protection?

Incitement to imminent lawless action (Brandenburg), fighting words, true threats, obscenity (Miller test), defamation, and child pornography. Commercial speech and indecent speech get intermediate-level protection.

What is the test for time, place, and manner regulations in a public forum?

They must be (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication.

What are the three types of government forums and the standards for each?

Public forums (streets, parks) and designated public forums: content-based limits get strict scrutiny, TPM rules allowed. Limited/nonpublic forums: regulations need only be viewpoint-neutral and reasonably related to a legitimate purpose.

What is the test for regulating commercial speech (Central Hudson)?

For lawful, non-misleading commercial speech, regulation must (1) serve a substantial government interest, (2) directly advance that interest, and (3) be narrowly tailored (reasonable fit). False, misleading, or unlawful commercial speech may be banned.

What is the Lemon test and the current approach to the Establishment Clause?

The Lemon test asked for a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement. The Court now (Kennedy v. Bremerton) emphasizes historical practices and original understanding/coercion analysis.

What is the test for Free Exercise Clause claims under Employment Division v. Smith, and the exception?

A neutral law of general applicability that incidentally burdens religion needs only a rational basis. But laws that target religious conduct or are not generally applicable get strict scrutiny; the government cannot compel violation of sincere religious belief without compelling justification.

What does freedom of association protect, and what standard applies to laws burdening it?

It protects the right to associate for expressive purposes; laws that significantly burden expressive association must satisfy strict scrutiny. Groups may also exclude members whose presence would impair their expressive message (Boy Scouts v. Dale).