MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series! This post focuses on Constitutional Law on the MBE.
You will see 25 Constitutional Law MBE questions on the Multistate Bar Exam — and many of them will cover the powers of Congress, which we will cover in this post.
Note that we have posted a total of 15 posts that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these 15 questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post covers one highly-tested area of substantive law as well as an important MBE strategy.
As mentioned above, today, we will review a Constitutional Law MBE question that tests the powers of Congress. Do your best to answer this question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the Constitutional Law MBE answer as well as read more about our MBE tip of the day.
Constitutional Law MBE Question
Congress passed a federal statute that imposed a 25% tax on anyone who checks luggage at an airport. The money raised will be used to update, modify, and improve Transportation Security Administration at a few select airports throughout the country.
Is the statute constitutional?
(A) Yes, because there is an important national interest in maintaining and improving security.
(B) Yes, because the tax is permitted pursuant to Congress’s taxing and spending powers.
(C) No, because the tax bears no direct relation to how the funds are expended.
(D) No, because the burden of the tax outweighs the benefit for any passenger who is not benefited by the improvements and modifications.
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to Constitutional Law MBE Question
Common Mistake: Students forget that Congress’s taxing and spending power is very broad!
Subject: Constitutional Law
Legal Issue:Is the statute constitutional? That is, is it within Congress’s powers?
Legal Rule and Analysis: Congress has broad powers to tax and spend. Congress may tax and spend for the general welfare. It may not act for the general welfare. (So if an MBE question states that Congress may do something pursuant to its power to “act for the general welfare” it is wrong.) This taxing and spending power is broad and does not have to be tied to an enumerated power. Even if it seems like Congress is using its power in a stupid way (i.e. to build a colony on Mars) it is still constitutional.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect: The answer is (B). Congress has broad powers to tax and spend! (A) is incorrect because Congress does not have to show an important national interest in order to pass a law under its taxing and spending powers. (C) is incorrect because it does not matter if the activity taxed is not directly related to how the funds are spent. It doesn’t need to be. (D) is incorrect. It is true this statement applies to state governments, but not the federal government.
MBE Tip: If you struggle with Constitutional Law questions (or Civil Procedure questions, for that matter) it is helpful to do more questions. This is because many Constitutional Law questions (and Civil Procedure questions) are based on real cases. So the more questions you complete, the more you are exposed to the kinds of questions that are tested.
Key Takeaways for the day:
Takeaway for the Law: Congress has broad powers to tax and spend. Congress may tax and spend for the general welfare. It may not act for the general welfare. This power is broad and does not have to be tied to an enumerated power. Even if it seems like Congress is using its power in a stupid way (i.e. to build a colony on Mars) it is still constitutional.
MBE Tip: If you struggle with Constitutional Law questions it is helpful to do more questions. This is because many Constitutional Law questions are based on real cases. So the more questions you complete, the more you are exposed to the kinds of questions that are tested.
Want to see Past MBE Tip of the Day posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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