Bar Exam — Constitutional Law (MBE subject) flashcards
10 of 80 cards free to study here · 5 topics · the whole deck is built into Willys
Black-letter constitutional law: justiciability, federal powers, separation of powers, federalism and state taxation, full faith and credit, state action, due process, equal protection, takings, the Contracts Clause, free speech and the religion clauses. Not affiliated with or endorsed by NCBE.
Learn deck · part of Bar exam (MBE subjects) · written against: NCBE MBE subject matter outline, edition dated 11/16/20; Supreme Court decisions through the October 2024 Term. Updated 2026-10-10.
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What three elements must a plaintiff show to have Article III standing?Injury in fact (concrete, particularized, and actual or imminent), causation (the injury is fairly traceable to the defendant's conduct), and redressability (a favorable decision is likely to remedy it). The plaintiff must have standing for each claim and each form of relief sought.Judicial Power › Justiciability
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A federal taxpayer sues to stop Congress's appropriation of funds to religious schools, alleging only her status as a taxpayer. Does she have standing?Yes — taxpayer standing is generally barred, but a narrow exception allows Establishment Clause challenges to congressional spending under the taxing and spending power. A taxpayer's general objection to how federal money is spent on other programs is a nonjusticiable generalized grievance.Judicial Power › Justiciability
Watch out: the exception does not reach discretionary executive spending or tax credits. -
Congress bans the cultivation of marijuana even for purely personal, in-state use. Is this within the commerce power?Yes — Congress may regulate the channels and instrumentalities of interstate commerce and activities that substantially affect it, aggregating the effect of intrastate economic activity. Home-grown marijuana, taken in the aggregate, substantially affects the interstate market for a commodity Congress may regulate.Separation of Powers › Congressional Powers
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Congress makes it a federal crime to possess a gun near any school, with no jurisdictional element or link to commerce. Is the statute valid under the commerce power?No — Congress may not aggregate the effects of noneconomic, intrastate activity to reach it under the commerce power. Gun possession near schools (like gender-motivated violence) is not economic activity, and upholding the law would effectively give Congress a general police power.Separation of Powers › Congressional Powers
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A federal statute orders state sheriffs to run background checks on gun buyers under a federal program. Is it constitutional?No — under the anti-commandeering doctrine, Congress may not compel state legislatures to enact laws or state executive officers to administer a federal regulatory program. Congress may instead regulate private actors directly or offer states incentives through conditional spending.Federalism › State Sovereignty
Watch out: it may not forbid states to legalize an activity (Murphy v. NCAA), but it may regulate the activity itself. -
Congress applies the federal minimum wage law to state government employees as well as private employers. Does this violate the Tenth Amendment?No — Congress may subject states to generally applicable laws that regulate private parties too; the Tenth Amendment does not shield states from such laws. The prohibited move is commandeering states' sovereign lawmaking or enforcement machinery, not regulating them as employers.Federalism › State Sovereignty
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A privately owned town, complete with streets and a business district, bans leafleting. Can the residents raise a First Amendment claim?Yes — a private actor is treated as the state when it performs a function traditionally and exclusively reserved to government, such as running a town or an election. Constitutional rights otherwise restrain only government action, not private conduct.Individual Rights › State Action
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A heavily regulated private electric utility with a state-granted monopoly cuts off a customer's service without a hearing. Is that state action?No — extensive regulation, licensing or a state-granted monopoly does not by itself turn private conduct into state action. There must be a sufficiently close nexus, such as the state compelling or jointly participating in the specific challenged conduct.Individual Rights › State Action
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A city bans all signs on public sidewalks that discuss politics but allows commercial signs. What standard applies?Content-based restrictions on protected speech get strict scrutiny — they must be necessary to a compelling interest and narrowly tailored. A law is content-based if it applies because of the topic, idea or message expressed, even if it is not aimed at a viewpoint.First Amendment › Speech Content and Forums
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A city bans amplified sound in a public park after 10 p.m. for all speakers. How is the ordinance reviewed?A content-neutral time, place or manner restriction in a public forum is valid if narrowly tailored to a significant government interest and it leaves open ample alternative channels of communication. It need not be the least restrictive means; a late-night noise limit easily qualifies.First Amendment › Speech Content and Forums
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Review status: Second-reader reviewed, with corrections applied.
Checked against:
- Checked against the U.S. Constitution (public domain) and the holdings of U.S. Supreme Court opinions through the October 2024 Term (public domain); no treatise or outline text reproduced.
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