NextGen Bar Exam Constitutional Law Syllabus

Constitutional Law syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Constitutional Law in NextGen Bar Exam, not a summary of it.

1. 1

   Judicial Power and Federalism

   4 topics

   • Justiciability
     • Standing, ripeness, and mootness
     • Political question doctrine
   • Judicial Review and Supreme Court Jurisdiction
   • Federal Legislative Powers
     • Commerce Clause and its limits
     • Taxing and spending powers
     • Enforcement of Reconstruction Amendments
   • The Tenth Amendment and Anti-Commandeering
2. 2

   Separation of Powers and Intergovernmental Relations

   4 topics

   • Executive Power
     • Appointment and removal powers
     • Foreign affairs and war powers
     • Executive privilege and immunity
   • Legislative Checks and Delegation
   • Supremacy Clause and Preemption
     • Express and implied preemption
   • Dormant Commerce Clause
     • Discrimination against interstate commerce
     • Undue burden and the market participant exception
3. 3

   State Action, Due Process, and Equal Protection

   5 topics

   • State Action Requirement
   • Procedural Due Process
     • Protected liberty and property interests
     • The Mathews balancing test
   • Substantive Due Process
     • Fundamental rights and tiers of scrutiny
     • Privacy, marriage, and family rights
   • Equal Protection
     • Suspect and quasi-suspect classifications
     • Rational basis, intermediate, and strict scrutiny
   • Takings Clause
4. 4

   Individual Liberties and the First Amendment

   5 topics

   • Freedom of Speech
     • Content-based versus content-neutral regulation
     • Unprotected and low-value categories
     • Public forum doctrine and time, place, and manner rules
   • Freedom of Association
   • Religion Clauses
     • Establishment Clause
     • Free Exercise Clause
   • Freedom of the Press and Prior Restraints
   • Privileges and Immunities Clauses

Constitutional Law flashcards for NextGen Bar Exam

24 of 52 cards from the Constitutional Law deck — real questions with worked answers.

1. What three requirements make up the constitutional "case or controversy" doctrine of standing?

   (1) Injury in fact — a concrete and particularized, actual or imminent injury; (2) Causation — the injury is fairly traceable to the defendant's conduct; and (3) Redressability — a favorable court decision is likely to remedy the injury.

2. When does a federal case become moot, and what are the recognized exceptions?

   A case is moot when the controversy has ended so there is no live dispute. Exceptions: (1) capable of repetition yet evading review; (2) voluntary cessation by the defendant that could resume; (3) class actions where a named member's claim is moot but others persist; and (4) collateral legal consequences.

3. What is the ripeness doctrine, and what two factors do courts weigh?

   Ripeness bars review of claims resting on contingent future events that may not occur. Courts weigh (1) the fitness of the issues for judicial decision (often whether the issue is purely legal) and (2) the hardship to the parties of withholding review.

4. What are the elements of the political question doctrine under Baker v. Carr?

   A nonjusticiable political question exists where there is a textually demonstrable constitutional commitment of the issue to another branch, or a lack of judicially discoverable and manageable standards for resolving it (e.g., partisan gerrymandering, impeachment procedures, foreign-policy recognition).

5. What is the rule for third-party (jus tertii) standing?

   A plaintiff generally cannot assert the rights of others, but may do so when (1) the plaintiff suffers its own injury, (2) there is a close relationship between the plaintiff and the third party, and (3) some obstacle prevents the third party from asserting his own rights.

6. What are the requirements for organizational (associational) standing?

   An association has standing to sue on behalf of its members when (1) its members would have standing to sue in their own right, (2) the interests at stake are germane to the organization's purpose, and (3) neither the claim nor the relief requires participation of individual members.

7. What did Marbury v. Madison establish?

   It established judicial review — the power of the federal courts to declare acts of Congress (and executive action) unconstitutional — holding that "it is emphatically the province and duty of the judicial department to say what the law is."

8. What is the difference between the Supreme Court's original and appellate jurisdiction?

   Original jurisdiction (cases affecting ambassadors and those in which a state is a party) comes directly from Article III and cannot be enlarged or restricted by Congress. Appellate jurisdiction covers all other Article III cases and is subject to congressional regulation and exceptions.

9. What is the "adequate and independent state ground" doctrine?

   The Supreme Court will not review a state court judgment if it rests on a state-law ground that is both adequate (sufficient to support the result) and independent of federal law, because any ruling on the federal issue would be advisory.

10. What are the three sources of congressional power over the Supreme Court's docket, and what is the main limit on stripping appellate jurisdiction?

    Congress controls via (1) the Exceptions and Regulations Clause, (2) statutory grants like certiorari, and (3) creation of lower courts. The chief limit: Congress may not use jurisdiction-stripping to dictate outcomes or violate other constitutional provisions (e.g., due process, separation of powers per United States v. Klein).

11. State the modern test for whether a federal statute is a valid exercise of the Commerce Clause power.

    Congress may regulate (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and persons/things in interstate commerce, and (3) economic activities that, in the aggregate, have a substantial effect on interstate commerce. Non-economic activity generally cannot be aggregated (United States v. Lopez, Morrison).

12. What is the scope of Congress's taxing and spending power, and the conditions on spending grants?

    Congress may tax and spend for the general welfare. Conditions on federal funds to states must be (1) for the general welfare, (2) unambiguous, (3) related to the federal interest, (4) not barred by other constitutional provisions, and (5) not so coercive as to be compulsion (NFIB v. Sebelius).

13. What does the Necessary and Proper Clause add to congressional power?

    It grants Congress the power to enact any law that is rationally related to executing an enumerated power. It is not an independent power source — it must attach to another enumerated power (McCulloch v. Maryland).

14. What is the scope of Congress's power under Section 5 of the Fourteenth Amendment?

    Congress may enact remedial/prophylactic legislation to enforce Fourteenth Amendment rights, but the legislation must show "congruence and proportionality" between the injury and the means; Congress cannot create new substantive rights or expand the scope of those rights (City of Boerne v. Flores).

15. What does the Tenth Amendment reserve, and what is the anti-commandeering principle?

    The Tenth Amendment reserves to the states powers not delegated to the federal government. The anti-commandeering doctrine forbids Congress from compelling states to enact or enforce a federal regulatory program or to administer federal law (New York v. United States; Printz v. United States; Murphy v. NCAA).

16. How can the federal government permissibly influence state policy without violating the anti-commandeering rule?

    It may (1) attach conditions to federal spending (within the Dole/NFIB limits), (2) regulate states and private parties alike through generally applicable laws, and (3) preempt state law under the Supremacy Clause — but it cannot directly order state legislatures or officials to act.

17. What are the President's powers over treaties versus executive agreements?

    Treaties require ratification by two-thirds of the Senate and are supreme federal law that prevail over conflicting state law (and, when later in time, over conflicting federal statutes). Executive agreements need no Senate approval; they prevail over conflicting state law but not over conflicting federal statutes.

18. Describe Justice Jackson's three-tier framework from Youngstown for evaluating presidential power.

    (1) When the President acts with congressional authorization, power is at its maximum; (2) when Congress is silent (zone of twilight), the President relies on his own powers and validity is uncertain; (3) when the President acts against the express or implied will of Congress, power is at its lowest ebb and is sustained only if Congress lacks authority over the matter.

19. What is the scope of presidential immunity and executive privilege?

    The President has absolute immunity from civil damages for official acts and at least presumptive immunity for official acts in criminal cases (Trump v. United States), but no immunity for unofficial conduct. Executive privilege protects confidential communications but yields to a demonstrated, specific need such as evidence in a criminal trial (United States v. Nixon).

20. What is the appointment and removal power, and when may Congress limit removal?

    The President appoints principal officers with Senate confirmation; 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 impose for-cause limits on officers performing quasi-legislative/quasi-judicial functions in multimember independent agencies — not on single-director agencies wielding executive power (Seila Law).

21. Why is the legislative veto unconstitutional (INS v. Chadha)?

    A legislative veto — Congress overturning executive action without passing a new law — violates the constitutional requirements of bicameralism (passage by both houses) and presentment (presentation to the President), which all exercises of legislative power must satisfy.

22. What is the nondelegation doctrine and the "intelligible principle" test?

    Congress may delegate legislative authority to agencies so long as it provides an "intelligible principle" to guide the exercise of the delegated power. The doctrine is rarely enforced, though the "major questions doctrine" requires clear congressional authorization for agency actions of vast economic and political significance.

23. State the rule and analytical steps of the Supremacy Clause for express preemption.

    Under the Supremacy Clause, federal law is supreme over conflicting state law. Express preemption occurs when a federal statute explicitly states that it displaces state law; courts then construe the scope of the preemption clause, typically narrowly given the presumption against preemption.

24. Distinguish the two forms of implied conflict preemption.

    (1) Impossibility preemption — when compliance with both federal and state law is impossible. (2) Obstacle preemption — when state law stands as an obstacle to accomplishing the full purposes and objectives of Congress.

See more Constitutional Law flashcards →

Planning Constitutional Law for NextGen Bar Exam

Constitutional Law (NextGen Bar Exam) FAQ