MBE Strategies Tip #7 – Constitutional Law

Answer to Constitutional Law MBE Question:

Common Mistake: Students forget that questions about foreign relations almost always constitute political questions.

Subject: Constitutional Law

Legal Issue:  May the court hear the case? Does the anthropologist have standing to bring it? Is it a political question?

Legal Rule and Analysis: Foreign affairs decisions made by the President are not going to be heard in court as they are nonjusticiable political questions. This includes recognition of tribes, recognition of other countries, the decision to “respond to an emergency attack” or invade another country. The court will not hear the case. This is a very highly-tested Constitutional Law political question issue!

 The theory is that those decisions are reserved for the president. Also, the court wants to U.S. to “speak with one voice.” It would be unusual if the president said one thing, then the court overturned the president.

Other political questions include: challenges made based on the “republican form of government” clause, political gerrymandering (i.e. drawing voting districts on political grounds), the age and qualifications of Congress, and impeachment procedures (these are given to the Senate). None of these will be reviewed by a court because they are all given to another branch of government and considered to be a “political question.”

Note that the anthropologist would otherwise have standing. It will suffer an injury in fact that is caused by the recognition of the tribe and would be redressed by a favorable decision.

Conclusion: The court will not hear the case on political question grounds.

Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:(C) is correct. (A) is incorrect because the anthropologist will suffer an injury in fact (loss of money). The facts go out of their way to tell you that the anthropologist has a profitable contract she will lose out on. (B) is not correct because the anthropologist does not need to show third-party standing. It is enough for the anthropologist to show that she herself is injured. (D) is incorrect because the court will not hear the case due to the political question doctrine.

MBE Tip: When you are in between two (or more) answer choices, go back to the facts! We notice that when students are in between two answer choices, they spend so much time staring at the answer choices and convincing themselves that one is right, that they forget to simply go back to the facts to see if anything new stands out!

Most students go between (A) and (B) or (C) and (D). If you are doing this, go back to the facts. If you reread the facts, you will notice that the anthropologist will clearly suffer an injury (loss of money), so you can eliminate (A). Then, ask yourself, “does the anthropologist even need third-party standing?” After all, if it is a political question, the court won’t hear it at all (even if the anthropologist does in theory have standing.  You can eliminate (D) once you decide that the question is non-justiciable.

MBE Tip for Constitutional Law Questions Particularly: Quantity is important when it comes to Constitutional Law questions! Many questions are based on real cases, so if you are exposed to enough of them (through practice!) you will start to see your score increase. Quantity, to some degree, is important to get better at  MBE questions generally. This is exaggerated with Constitutional Law questions though, given that they tend to make questions based on real cases.