Most Tested MBE Constitutional Law Topics | BarPrepPlay

Overview

Constitutional Law is easier to control when you anchor on recurring frameworks: state action, standing, scrutiny, commerce, speech, and separation of powers.

1. State Action Doctrine

Very High frequency

The Constitution only restricts GOVERNMENT action, not private conduct. State action exists when: (1) PUBLIC FUNCTION - private entity performs traditional, exclusive government function (running elections, company towns); (2) ENTANGLEMENT - government is significantly involved through regulation, subsidies, or authorization; (3) JUDICIAL ENFORCEMENT - court enforces private discrimination (Shelley v. Kraemer). Key traps: Heavy regulation alone is NOT enough. Private schools receiving tax exemptions = NO state action. Look for government compelling or encouraging the specific discriminatory act.

HYPO: A private country club refuses to admit Black members. A rejected applicant sues under the Equal Protection Clause. The club receives a state liquor license. ANALYSIS: Is there state action? Mere licensing/regulation is NOT enough. The liquor license doesn't make the state sufficiently entangled in the club's membership decisions. No public function (private clubs aren't traditionally government activities). RESULT: No state action. Constitutional claim fails. Plaintiff would need a civil rights statute (like Title II) instead.

• Exam shortcut: Private actors need government involvement

Section sources

2. Standing Requirements

Very High frequency

Three requirements: (1) INJURY IN FACT - concrete, particularized, actual or imminent (not speculative); (2) CAUSATION - injury traceable to defendant's conduct; (3) REDRESSABILITY - favorable decision would remedy harm. TAXPAYER STANDING is very limited - only for Establishment Clause challenges to Congressional spending. NO generalized grievances (everyone is hurt). Third-party standing generally not allowed unless close relationship + obstacle to suit. Organizations can sue if members would have standing, interests are germane, and individual participation not required.

HYPO: Environmental group sues EPA claiming new regulations will harm the environment. No member has identified specific injury. ANALYSIS: (1) Injury in fact? NO - "environment will be harmed" is too general. Need specific, concrete injury to a MEMBER. (2) Must show a member uses specific land that will be affected. RESULT: No standing without identifying at least one member with concrete, particularized injury. The group should amend to include declarations from members who use specific affected areas.

• Exam shortcut: Injury + causation + redressability

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3. Dormant Commerce Clause

Very High frequency

When Congress hasn't acted, states CANNOT: (1) DISCRIMINATE against interstate commerce - facial discrimination is virtually per se invalid (strict scrutiny); (2) UNDULY BURDEN interstate commerce - even neutral laws struck if burden on commerce outweighs local benefits (Pike balancing). EXCEPTIONS: (1) Market participant exception - state acting as buyer/seller can favor locals; (2) Congressional authorization - Congress can permit discrimination; (3) Traditional government functions. Look for laws favoring in-state businesses, blocking out-of-state waste, or requiring local processing.

HYPO: State X bans importing out-of-state garbage. State claims it's protecting health and environment. ANALYSIS: This facially discriminates against interstate commerce (only out-of-state garbage banned). Apply STRICT SCRUTINY. Is there a legitimate local purpose? Yes - environmental protection. Are there non-discriminatory alternatives? YES - could limit ALL garbage or use other environmental controls. RESULT: Law is UNCONSTITUTIONAL. Garbage is commerce. Can't block out-of-state products just because they're from elsewhere (Philadelphia v. New Jersey).

• Exam shortcut: Facial discrimination = virtually per se invalid

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4. Free Speech - Time/Place/Manner

High frequency

CONTENT-BASED restrictions get strict scrutiny (necessary for compelling interest). CONTENT-NEUTRAL restrictions (TPM) get intermediate scrutiny if: (1) Significant government interest; (2) Narrowly tailored (not least restrictive); (3) Leave open alternative channels. PUBLIC FORUMS (streets, parks): TPM rules apply. LIMITED PUBLIC FORUMS (schools for designated use): Can restrict by subject matter. NONPUBLIC FORUMS (jails, military bases): Only need be reasonable and viewpoint-neutral. PRIOR RESTRAINTS are presumptively invalid. Overbreadth allows facial challenge if substantial number of applications are unconstitutional.

HYPO: City bans all leafleting on public sidewalks to reduce litter. ANALYSIS: Public sidewalks = traditional public forum. Is the ban content-neutral? YES - applies to all leaflets regardless of message. Apply INTERMEDIATE SCRUTINY: (1) Government interest? Reducing litter - significant. (2) Narrowly tailored? NO - a complete ban is too broad. Could require cleanup or use anti-littering laws. (3) Alternative channels? Must leave open ample alternatives. RESULT: Likely UNCONSTITUTIONAL - total ban not narrowly tailored when less restrictive options exist.

• Exam shortcut: Content-neutral = intermediate scrutiny

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5. Equal Protection Scrutiny Levels

High frequency

STRICT SCRUTINY (suspect classes/fundamental rights): Race, national origin, alienage (state). Must be necessary to achieve compelling interest. Applies to intentional discrimination only. INTERMEDIATE SCRUTINY: Gender, legitimacy. Must be substantially related to important interest. RATIONAL BASIS: Everything else (age, disability, wealth, sexual orientation for most purposes). Must be rationally related to legitimate interest - very deferential. NOTE: Alienage gets rational basis for federal laws (plenary immigration power) and for state laws involving self-government (voting, police, teachers).

HYPO: State requires all police officers to be U.S. citizens. Non-citizen applicant challenges. ANALYSIS: Usually alienage gets STRICT SCRUTINY for state laws. BUT there's an exception for positions involving "self-government" and discretionary authority over citizens. Police officers exercise significant discretionary power (arrests, force). RESULT: Rational basis applies under the "political function" exception. Law upheld - state can reasonably require citizens for police.

• Exam shortcut: Know triggers for each level

Section sources

Primary law and source anchors

• U.S. Constitution Amendment XIV, Section 1 The Equal Protection Clause text used for scrutiny-level analysis.
• U.S. Constitution Article I, Section 8, Clause 3 The Commerce Clause text underpinning congressional commerce power questions.
• The Civil Rights Cases, 109 U.S. 3 (1883) Foundational state-action decision distinguishing private from governmental conduct.

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