The Contracts Clause

The Contracts Clause is not the most commonly tested topic within Constitutional Law on the bar exam. But it's shown up on both the MBE and on essays, so it's a good idea to go into the test with a framework for addressing it.

The Contracts Clause, in part, provides that no state shall pass any laws impairing the obligation of contracts. In determining whether there has been such an impairment, a few questions are addressed. First, whether there is a contractual relationship at issue. If so, next determine whether a state law substantially impairs that contractual relationship. If it does, determine the state's interest in doing so.

Likely, the the part of the analysis that will require the most attention is determining whether the impairment is substantial. And in making that determination, it's helpful to understand what type of state law will not substantially impair a contract. 

A state law does not substantially impair a contract if it merely tracks the contracting parties' likely intent or expectations or if it allows for either party to easily override the statutory provision. In such instances, although there might still be some degree of impairment, the impairment is not deemed substantial. Likewise, a state statute will not substantially impair a private contract if the statute relates to an area already heavily regulated by the state. The parties could have anticipated state involvement and so the impairment will not be deemed substantial. 

In contrast, a state statute does substantially impair a private contract if the statute negates a material term of the contract or negates a term of the contract that induced a party to enter into the contract. 

Once you've determined that a state statute substantially impairs a private contract, the next element to consider is whether, notwithstanding that impairment, the state statute is an appropriate and reasonable measure to serve a significant and legitimate state interest. Yet another constitutional law test to remember, and it seems like some sort of hybrid of other tests you may have already learned. 

The purpose of requiring that a state have a significant and legitimate interest is to ensure that the statute is intended to further that interest rather than to further the interest of one of the privately contracting parties. Because a state statute intended only to favor a privately contracting party will be deemed to violate the Contracts Clause. 

Procedural Due Process

There's much they can test on procedural due process.

To start, there are three rights protected: life, liberty, and property. Only intentional (as opposed to negligent) deprivation of these rights is of concern here.

Liberty is not defined, but it's safe to assume that a violation of the liberty right occurs if a person loses significant freedom of action or if a person is denied any other freedom granted by the Constitution or by another statute. 

Property, likewise, is considered more broadly than what a traditional definition might imply. If there's a legitimate claim to entitlement under either state or federal law, and one is denied that entitlement, a violation of the property right is likely to have occurred. 

Let's now assume that it's determined that a right protected by procedural due process has been violated. Then, it's time to determine the type and extent of procedure required for those complaining of that violation. Like much in Constitutional Law, there's a test to determine whether there's been a violation. 

The following factors should be weighed:

-The importance of the interest to the individual,

-The value of specific procedural safeguards to that interest; and

-The government interest in fiscal and administrative efficiency. 

But in addition to knowing that test, it's helpful to understand some specific examples that show up. Here are some common examples using the test above to determine the type and extent of procedure required:

Welfare Benefits: Prior notice and a prior evidentiary hearing are generally required.

Disability Benefits: Prior notice, opportunity to respond, and a subsequent evidentiary hearing are generally required.

Public Employment (if tenured or if termination is only "for cause"): Prior notice, opportunity to respond, and a prior evidentiary hearing are generally required. 

Suspension or Academic Dismissal from Public Education: Prior notice and opportunity to respond are generally required. 

Driver's License Suspension: A prior evidentiary hearing is generally required. 

Termination of Parental Custody Rights: Prior notice and a prior evidentiary hearing are generally required. 

Commitment to a Mental Institution (adults): Prior notice and a prior evidentiary hearing are generally required, though not always in an emergency. 

Commitment to a Mental Institution (children): Prior screening by a neutral fact-finder is generally required. 

The above is not an exhaustive list, but with the examples here along with the general test above, you'll have the tools needed to analyze procedural due process questions should they show up on the exam.

Time, Place, & Manner Restrictions (Forum Analysis)

Students often ask which topics within a given subject are the most important topics to learn when preparing for the MBE. With some subjects this is a tougher question to answer. With Constitutional Law, however, I'm confident in saying that you'll want to know the First Amendment well.

An important distinction in this area is content vs. conduct. It is presumptively unconstitutional to place burdens on speech because of its content. (Though for sure there are exceptions to this general rule that you'll need to know for the bar exam.) When conduct rather than content is at issue, speech can be regulated by content-neutral time, place, and manner restrictions. And those time, place, and manner restrictions are the focus of this post. 

The government has the power to regulate conduct associated with speech. In determining the extent of that power, it must first be determined whether the forum involved at which the purported speech is to take place is a public forum, a designated public forum, a limited public forum, or a nonpublic forum.

Public property that has historically been open to speech-related activity is a public forum. Some public property has not historically been open to speech-related activity and yet the government has at times opened it for such activity on either a permanent or a limited basis. These forums are known as designated public forums. Whether a public forum or a designated public forum, the government may regulate speech in such forums with reasonable time, place, and manner restrictions. There are elements to determine whether these restrictions are reasonable. They must be content-neutral (otherwise we'd be dealing with a content-based restriction), narrowly tailored to serve an important government interest, and they must leave open alternate channels of communication. It's important to note that these requirements are necessary but might not be sufficient. In other words, you might find a regulation that satisfies these elements but is still deemed overbroad or vague or etc. 

Speech is easier to regulate in limited public forums and in nonpublic forums. Limited public forums are forums that have not historically been linked with speech-related activity but have been opened for a specific speech activity. As an example, think of a school auditorium that is open for a specific debate. Nonpublic forums are similar to limited public forums in that they have not historically been open for speech-related activity but unlike with the limited public forums, these nonpublic forums are never held open for speech-related activity. 

The government can regulate speech in limited public forums and in nonpublic forums provided that the regulations are viewpoint neutral (even if they are not content neutral) and if they are reasonably related to a legitimate government purpose. 

This all gets confusing quickly, but it's important to know it well. One takeaway for sure is that it's easier for the government to regulate speech in nonpublic forums and in limited public forums than it is for the government to regulate speech in designated public forums and in public forums. Once you understand that fundamental point, you can start digging deeper into the specifics of it all.

The Privileges and/or Immunities Clause

There are a lot of clauses to know in Constitutional Law but among the ones you should know best is the Privileges and Immunities Clause.

Most importantly for MBE purposes is the clause falling under Article IV, also called the Interstate Privileges and Immunities Clause. The clause prohibits discrimination by a state against nonresidents of that state. "Nonresidents" here does not include corporations or aliens, and this is one way that this clause differs from the Equal Protection Clause, the Due Process Clause, and the Dormant Commerce Clause. 

The Interstate Privileges and Immunities Clause prohibits discrimination by a state against a nonresident only if the discrimination concerns fundamental rights. In this context "fundamental rights" includes commercial activities and civil liberties. 

And even if you see in a question the type of discrimination described above, you should consider whether the state had a substantial justification for the different treatment. The state will want to show that the nonresidents caused or are a significant part of the problem that the state is trying to solve and that there are no less restrictive means other than unequal treatment for solving that problem. That might provide the substantial justification that the state will need in order to defend. 

Most of the questions dealing with privileges/immunities will deal with the Interstate clause under Article IV.  But there is also another clause quite similar and it would be easy to muddle them up. There's a Privileges or Immunities Clause (notice the "or" rather than the "and") under the 14th Amendment. Under this clause, a state may not deny its citizens the privileges and immunities of national citizenship (for example, the right to petition congress for redress, the right to vote, etc.). And once again, corporations are not protected by this clause.

The First Amendment and Government Employment

This one gets into the weeds of Constitutional Law a bit but the MBE will throw some curveballs so it's best to be ready for them.  Some questions may test how freedom of speech must be balanced with the right of a public employer to regulate the speech of a public employee.

The general rule outside of this specific context is that speech cannot be regulated based on the content of the speech unless the regulation is necessary to serve a compelling government interest. But this type of strict scrutiny might not apply when the government seeks to regulate the speech-related activities of a government employee and punish an employee for failing to follow those regulations.

A government employer may regulate a government employee's speech whenever the speech is made on the job and pursuant to the employee's official duties. And this is true even if the speech involves a matter of public concern.

In contrast, if the speech is not made pursuant to the employee's official duties, things get a bit more complicated.  If such speech does not involve a matter of public concern, then regulation and punishment by the employer is generally permissible provided the speech is disruptive to the work environment. But if this type of speech does involve a matter of public concern, courts will balance the employee's rights as a citizen to comment on matters of public concern against the government's interest as an employer in avoiding the kinds of controversy that might prevent performance of public services.

Also worth noting is that a provision banning government employees from accepting an honorarium for making speeches, writing articles, etc. has been held to violate the First Amendment when applied to "rank and file" employees.  Such speech can be regulated only if the government can show that the rights of the employee and the potential audiences to which the employee will be speaking are outweighed by the necessary impact that the speech would have on the operation of the government.

Lastly, the government may require its employees to take loyalty oaths provided those oaths are not vague or over-broad. An oath requiring an employee to support the constitution and to oppose the unlawful overthrow of the government is valid, but an oath requiring public employees to support or salute the flag is invalid (since one might choose not to do so on religious grounds).

Congressional Powers

Lots of legislative powers to remember for the MBE. Below lists them all with a few of the most important points to keep in mind about each:

The Taxing Power:  

The essential requirement here is that either the tax bear some reasonable relationship to revenue production or that Congress has the power to regulate the activity taxed. 

The Spending Power:

Congress may spend to provide for the common defense and general welfare. This is quite broad; spending may be for any public purpose, though the power may be limited by other constitutional provisions. Worth noting that although Congress can tax and spend for the general welfare, it cannot legislate for the general welfare. Watch out for that trap on the MBE. 

The Commerce Power:

Congress has the power to regulate all foreign and interstate commerce. The federal law regulating interstate commerce must either regulate the channels of interstate commerce or regulate the instrumentalities of interstate commerce. In addition, the power extends to the regulation of activities that have a substantial effect on interstate commerce. This may even include intrastate activity if such activity is economic or commercial and there is a rational basis for Congress to conclude that the activity in the aggregate substantially affects interstate commerce. 

The War Power:

Congress declares war, and raises/supports armies. It also provides for and maintains a navy. Economic regulation during war and in the postwar period is likely to be upheld. Congress also has the power over regulation of armed forced through the military courts and tribunals. These military courts have jurisdiction over all offenses committed by persons who are members of the armed services both at the time of the offense and when charged. American civilians, on the other hand, may be tried by military courts only if warfare forces the federal courts to shut down.

The Investigatory Power: 

The power of Congress to investigate is implied and investigation may be expressly or impliedly authorized by the appropriate congressional house. 

The Property Power:

Congress has the power to dispose of and make rules for territories and other properties of the United States. This is an absolute power to dispose of property but note the rules of eminent domain should be considered when property is taken. Although Congress has no federal police power it does have police-type powers of the District of Columbia, federal lands, military bases, and Indian reservations. 

The Bankruptcy Power:

Congress has the power to establish uniform rules of bankruptcy but this power is nonexclusive. States may legislate in the field as long as their laws do not conflict with federal law (as per the Supremacy Clause).

The Postal Power:

The postal power is exclusive. Though Congress may place reasonable restrictions on the use of the mails, it may not deprive any citizen or group of citizens of the general mail privilege. 

The Power Over Citizenship:

Congress has plenary power over aliens. Aliens have no right to enter the United States but resident aliens are entitled to notice and a hearing before they can be deported. Congress may not take away the citizenship of any citizen (native born or naturalized) without consent. 

The Admiralty Power:

Congress's admiralty power is exclusive unless it leaves maritime matters to state jurisdictions. 

The Power to Coin Money:

Congress has the power to coin money and to fix standards for weights and measures. 

The Patent/Copyright Power:

Congress has the power to control the issuance of patents and copyrights. 

The Necessary and Proper Power: 

Congress has the power to make all laws necessary and proper for executing any of the powers mentioned above.

The Supremacy Clause and Preemption

I've found when working with students that many understand the purpose of the Supremacy Clause of the Constitution. But the MBE might test some very fine details that are worth remembering.

First to note is the idea of express preemption. A federal law may expressly provide that the states may not adopt laws concerning the subject matter of federal legislation. More difficult (and subtle) is implied preemption. If a state law conflicts with a federal law, the state law will be held to be impliedly preempted. Similarly, if a state law prevents the achievement of a federal objective, it will be held to be impliedly preempted. And this is so even if the state law was enacted for a valid purpose other than to prevent the achievement of the federal law.

You'll also want to keep in mind the situations in which a federal statute occupies the field.  In those instances, the statute will preclude any state regulation even if the state regulation does not conflict with a federal law. Determining whether the federal regulation occupies the field will be the objective of a court which will use a variety of factors in determining congressional intent.

In all of the above (and especially when determining whether the federal court has occupied the field) the court will start with the presumption that state powers are not to be superseded unless that was the clear intent of Congress.

MBE Fast Fact: Candidates and Campaigning

Seems to me that there is very often a question or two (in the subject of Constitutional Law) on candidates and campaigning for election.  Here are a few quick points to keep in mind:

~ States may not charge candidates a fee that results in making it impossible for indigents to run for office.

~ Ballot access regulations are not per se unconstitutional, but any regulation must be a reasonable, nondiscriminatory means of promoting important state interests.  A state may require a candidate to show reasonable support prior to allowing that candidate to have his/her name placed on the ballot.

~ The government may allocate more public funds to the two major political parties than to other minor parties for political campaigns.

MBE Fast Fact: Obscenity

"I shall not today attempt to further define the kinds of material I understand to be embraced within that shorthand description ["pornography'] and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."

So said Justice Potter Stewart in a 1964 Supreme Court opinion attempting to determine whether a movie was protected speech under the First Amendment or whether it fell outside the zone of protected speech because it was obscene.

You likely won't need to define pornography on the MBE, but you will need to understand the test for obscenity since obscene speech is not protected by the First Amendment. Here's what to know:

Speech is obscene if it describes or depicts sexual conduct that taken as whole by the average person does all 3 of the following:

~ Appeals to the prurient interest in sex. A community standard will be used to determine whether this element has been satisfied.

~ Is patently offensive and an affront to contemporary community standards.

~ Lack serious literary, artistic, political, or scientific value. Notably, here rather than a community standard, a national reasonable person standard is used to determine if this element is satisfied.

Another point to note, the state may adopt a specific definition of obscenity applying to materials sold to minors even though the material might not be obscene if the intended audience were instead adults.

The Powers and Limitations of the President

The President of the United States as part of the executive branch of government is granted certain powers by the Constitution, but those powers are far from absolute. For purposes of the MBE it's important to understand both the powers of the President as well as the limits placed upon whoever holds the position.

The following are the key points to keep in mind:

~ The President has the power to appoint all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States. Congress, however, vests the appointment of "inferior officers."  It should be noted that Congress may not appoint members of a body with administrative or enforcement powers (often tested).

~ The President can remove high level executive officers (for example, members of the cabinet), and may do so at will without any interference from Congress. Congress, however, may provide limitations on the power of the President to remove all other executive appointees. If Congress itself wants to remove executive officers it may do so but only through the impeachment process.

~ The President may grant pardons for all federal offenses but not for impeachment or for civil contempt. Congress has no power to limit the pardon power of the President.

~ The President can veto an act of Congress, but that act may still become law if the veto is overridden by 2/3 vote of each house.  Importantly, the veto power only allows the President to approve or reject a bill in total; there is no right granted to cancel part of a bill and approve other parts (a line-item veto). The President has 10 days to exercise the veto power. If not exercised in that time span the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill becomes law.

~ The President may act militarily in hostilities against the United States without a formal declaration of war by Congress.  The President, however, has no power to declare war.

~The President has the power to enter into treaties with foreign nations, but such treaties require the consent of 2/3 of the Senate.  If there is a conflict between a treaty and a valid congressional act, the one that occurred most recently prevails.  A treaty, however, never prevails over the Constitution.

~The President has the power to enter into executive agreements with foreign nations, and these agreements do not require consent from the Senate.  If a state law conflicts with an executive agreement, the executive agreement prevails, but if a federal law conflicts with an executive agreement, the federal law prevails.

~ The President is given a privilege to keep certain communications secret.  But in criminal proceedings, communications involving the President will be available where a need for such information is demonstrated.

~ The President has immunity from civil damages based on any action he took within the official responsibilities of the office but there is no immunity for acts that occurred prior to taking office.

~ The President is subject to impeachment. Grounds for impeachment include treason, bribery, and high crimes and misdemeanors. A majority vote in the House is needed to invoke charges against the President, and a 2/3 vote in the Senate is necessary to convict and remove from office.

MBE Fast Fact: The Taxing Power

I remember my Constitutional Law professor in law school mentioning that Constitutional Law can be broken down into two main areas: powers and limitations. I think he had a point.

There are quite a few congressional powers and one of those powers is the power to tax.  Specifically, Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare. And so with this rule in mind, it follows that a congressional act purporting to be a tax will be upheld if it raises revenue or if it was intended to raise revenue as raising revenue is deemed to be providing for the common defense and general welfare.

In addition, as long as Congress has the power to regulate the activity taxed, the necessary and proper clause can form a basis for Congress to tax that activity.

So, in short, it's best to remember that if Congress has the right to regulate an activity (as per a power granted to it in the Constitution) then the tax is very likely to be upheld as per the necessary and proper clause.  But even when Congress does not have the power to regulate an activity taxed, a tax will likely be upheld if its dominant intent is to raise revenue.

The Right to Travel

In the most recent post, I wrote about the fundamental right to vote.  Another fundamental right that shows up in MBE questions (not all that frequently) is the fundamental right to travel. And to reiterate, these fundamental rights are important both for substantive due process and for equal protection. In either case, if a law impairs such a right, the law will only be valid if it passes strict scrutiny.

An individual has a fundamental right to travel from state to state and to be treated equally after migrating to the new state.  It's important to note, though, that not every restriction on the right to cross state lines is an impairment on the fundamental right to travel.   An example to illustrate a restriction that would not be an impairment on the fundamental right to travel would be a penalty incurred by a parent who has abandoned his/her children by leaving the state and not paying child support.  In addition, often states will impose durational residency requirements for receiving certain benefits within the state.  It's questionable whether strict scrutiny is necessary here (in other words, it's questionable if such a residency requirements is an impairment on the fundamental right to travel).  It's probably best to keep the following in mind:  A one-year residency to receive full welfare benefits is invalid, as is a one-year residency to receive state-subsidized medical care.  Likewise, a one-year residency to vote in state is invalid.  On the other hand, a 30-day residency requirement to vote in state is valid, as is a one-year residency to obtain a divorce.

Note also that international travel is not a fundamental right.  It's best instead to apply rational basis scrutiny to ensure that any regulations impairing international travel are not arbitrary.

The Right to Vote

Fundamental rights are important both in terms of the Equal Protection Clause and in terms of substantive due process.  If these rights are denied to everyone the correct analysis is substantive due process; if, on the other hand, they are denied to some individuals rather than everyone, then the proper analysis is equal protection. In either case, though, whenever a fundamental right is at issue, the proper analysis is strict scrutiny.  In other words, any government action that is going to affect a fundamental right must be necessary to serve a compelling government interest.

One such fundamental right is the right to vote, and there are a few key things to keep in mind regarding this specific fundamental right:

Residency Requirements:  Reasonable time periods for residency are valid.   Though reasonableness can be tough to evaluate, 30 days residency has been held to be valid for purposes of voting.

Property Ownership:  Conditioning the right to vote on ownership of property is almost always invalid. One exception deals with special purpose elections (voting for officials who do not exercise normal governmental authority but instead deal with matters of special interest in the community).

Poll Taxes: Poll taxes are unconstitutional.

Primary Elections: States may require early registration to vote in primaries. States cannot, however, prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.

One Person One Vote: This principle applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.  An exception, again, is for special purpose elections.

Gerrymandering: Race and other suspect classifications cannot be the predominant factor in drawing the boundaries of voting districts unless the plan satisfies strict scrutiny.

State Taxation of the Federal Government

As you're preparing for the exam you're certain to come across some questions in Constitutional Law testing the concept of state taxation of the federal government. The general rule to note is that a state may not tax federal instrumentalities without the consent of Congress. The key point here is that a state cannot tax the federal government or its agents in a manner that is going to prevent the federal government from performing its federal functions. But then there are those nondiscriminatory taxes (a very common issue that shows up is when the state requires federal employees to pay state income taxes) that are perfectly valid provided that they do not unreasonably burden the federal government.

But the reason for this post is that a less common rationale for providing the federal government with a basis for avoiding state taxation comes up in the questions and it should be considered as a correct answer choice.

The Necessary and Proper Clause in the Constitution gives Congress the power to make all laws necessary and proper for executing any power granted to the federal government. Though it seems like a bit of a stretch, the right to make all laws necessary and proper for executing any power granted to the federal government has been held to include the power of the federal government to grant itself immunity from state taxation.

MBE Fast Fact: Intersovereign Litigation

Though not a very heavily tested area within the subject of Constitutional Law, there are a few points to keep in mind about intersovereign litigation:

The United States may sue a state without its consent. Public policy, however, forbids a state from suing the United States without the consent of the United States. Note importantly, however, that Congress can pass legislation that permits the United States to be sued by a state.

Questions might present in which a federal officer is being sued and you'll need to determine whether that suit against the federal officer should be deemed a suit against the United States or instead a suit against the officer as an individual. It will be deemed to be a suit against the United States if the judgment sought would be satisfied out of the public treasury and if the officer was acting within his scope of authority. However, if the officer acts outside of his authority as a United States officer (such acts are deemed "ultra vires") then specific relief against the individual officer will be granted as a suit against the officer in such a situation will not be deemed to be a suit against the United States.

Finally, note that one state may sue another state without the consent of the latter state. In such a lawsuit, the Supreme Court has original jurisdiction.

MBE Fast Fact: First Amendment: Overbroad vs. Void for Vagueness

I've stated on this blog in the past that the First Amendment is an important topic to know well when studying Constitutional Law. The terms "overbroad" and "void for vagueness" have similarities that make them very testable as small differences can materially distinguish one answer on the exam from another.

A statute is overbroad if the statute proscribes activities that may be constitutionally forbidden but in doing so also sweeps within its coverage speech that is protected by the First Amendment. A law limiting First Amendment rights must be crafted to limit only those rights not protected by the Constitution. If not crafted as such then it might well be overbroad and therefore unconstitutional.

In contrast, a statute may be void for vagueness if the conduct forbidden is so unclearly defined that people would have to guess at its meaning and would differ as to its application. Oftentimes if a question is testing the concept of vagueness a specific term within a law will be provided, but that term will not be defined. By not defining that term its meaning is left ambiguous and ambiguity leaves open the possibility that people will define the term differently thereby limiting their ability to correctly apply the law. If a reader of a statute is left to guess the meaning of a material term within a statute, consider whether that statute is void for vagueness.

MBE Fast Fact: Symbolic Speech

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people to peaceably assemble and to petition the government for a redress of grievances.

The First Amendment is heavily tested within the subject of Constitutional Law. Protection is not limited to verbal communications; rather, symbolic conduct is also protected provided the conduct is undertaken with the intent to communicate an idea.

The difficulty lies in determining whether symbolic conduct is intended to communicate an idea; if not then the conduct will not fall within the protection of the First Amendment. In analyzing such cases, the courts ask whether the speaker intended to convey a particular message and whether it is likely that the message was understood by those who viewed it. Assuming that the conduct is intended to communicate an idea (and is therefore deemed symbolic speech protected by the First Amendment) the following test should be applied in determining whether an attempt to regulate that conduct will be upheld:

A regulation of symbolic conduct that is meant to an express an idea will be upheld provided that the regulation furthers an important governmental interest. In addition, the governmental interest must be content-neutral in the sense that it is unrelated to the suppression of speech.

Finally, the incidental burden on speech must be no greater than is necessary to further the government's interest. In other words, the regulation must prohibit no more speech than is essential to further the government's interest.

The Commerce Clause

Questions testing the Commerce Clause on the MBE are quite common. The Commerce Clause provides an avenue for Congress to pass regulations but it's important not only to understand the power granted to Congress but the limitations as to that power as well. Congress can pass laws that regulate interstate commerce provided the laws regulate the channels of interstate commerce, or the instrumentalities of interstate commerce. In addition the Commerce Clause stretches even further by allowing Congress the power to pass laws that regulate activities that have a substantial effect on interstate commerce.

When the activity that is the subject of the regulation is intrastate (does not cross state lines) rather than interstate (crosses state lines), any regulation by Congress attempting to regulate such activity will be upheld only if the activity is deemed economic or commercial, and there is a rational basis for concluding that the activity will have a substantial effect on interstate commerce. Stated otherwise, if the activity is noncommercial and intrastate, the Commerce Clause is unlikely to provide an appropriate avenue for Congress to regulate that activity.

And even if Congress has not passed a law regulating interstate commerce, a state law that discriminates or unduly burdens interstate commerce will likely be held in violation of the Commerce Clause. This is often called the Dormant Commerce Clause, and it limits the state's ability to pass laws discriminating against interstate commerce, even if Congress has passed no conflicting law, unless the law furthers an important non-economic state interest and there are no reasonable nondiscriminatory alternatives, the state is acting as a market participant, or the law involves government action regarding the performance of a traditional state-government function. Note that if a non-conflicting state law does not discriminate against interstate commerce, it may still be a violation of the Commerce Clause (as per the Dormant Commerce Clause) if the law burdens interstate commerce, and the state's interest in passing the law does not outweigh that burden.

MBE Fast Fact: Abstention

In prior posts I've written about some limitations on the exercise of federal jurisdiction. Some examples of such limitations are a lack of standing, the rule against advisory opinions, and cases deemed moot or not yet ripe. Another limitation to keep in mind occurs when a federal court abstains from resolving a constitutional claim. For MBE purposes, keep in mind that a federal court will temporarily abstain from resolving a constitutional claim where the disposition rests on an unsettled question of state law.

Further, federal courts will not enjoin pending state criminal proceedings (and sometimes state civil proceedings) even if the federal court has jurisdiction over the case. A case is generally deemed to be pending the moment it is filed. Rather, the federal court will wait until after the state prosecution has ended to hear the case.

There is an important exception here, however, to keep in mind. A federal court will hear an action to enjoin a pending state court proceeding if is being conducted in bad faith (for example, a case moving forward in state court merely to harass the defendant).

MBE Fast Fact: Legislative Immunity

There are many ways that the tort of defamation can be tested on the MBE. One constitutional aspect of defamation to keep in mind is called the Speech and Debate Clause.

Article 1 Section 6 of the Constitution provides that for any speech or debate in either the House of Representatives or the Senate, members of Congress shall not be questioned in regards to statements made. And it's important to note that the statement need not relate to legislation; it's enough that the words were spoken on the floor during a legislative session. The clause shields members of Congress from civil or criminal suits relating to their legislative actions, and from grand jury investigations relating to those actions.

The MBE has also tested whether the Speech or Debate Clause applies to protect legislative assistants. In fact it does to the extent that the assistants are performing acts that would have been protected had they been performed by a member of Congress.