MBE Tip of the Day: Constitutional Law

Answer to the Constitutional Law MBE Question

Subject: Constitutional Law

Legal Issue: Congressional powers

Legal Rule and Analysis: Congress has the broad power to regulate and dispose of federal property and land.  When discussing Congress’ power to act “to promote the general welfare,” this is limited to Congress’ taxing and spending power.  The text of the Constitution states: “The Congress shall have Power To lay and collect Taxes, … and provide for the common Defence and general Welfare of the United States…” The Supreme Court has interpreted this reference to acting in the general welfare to be a qualification on Congress’ taxing and spending power as opposed to a broad, separate power.

The necessary and proper clause is not a separate power in and of itself.  Rather, its exercise must be tied to another enumerated power.  When standing alone, it cannot justify any congressional action.

Finally, only the states have broad general police powers.  Congress has no police power, with the logic being the states are more aware of what is in their citizens’ best interests. The exception to this general rule is when Congress is making a law that applies to federal lands.

In this case, Congress wishes to regulate the inspection and destruction of trees.  As applied to every tree in the country, this would likely be unconstitutional as it does not fall under any enumerated power.  However, Congress does have the power to regulate federal property and land.

Conclusion: Congress’ best argument would be that the law is constitutional as applied to trees on federal lands, as Congress has broad power to regulate and dispose of federal property.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. 

(D) is the correct answer. (A) is incorrect because Congress’ power to act to promote the general welfare is limited to taxing and spending.  It is not a generalized power – rather it is a qualification on an existing power. (B) is incorrect because Congress does not have an independent necessary and proper power.  Rather, the exercise of the necessary and proper power must be tied to another enumerated power.  (C) is incorrect because only the states have a general police power.  Congress does not have this power.

MBE Tip: Don’t get fooled by congressional powers that look tempting but actually don’t exist or are stated far too broadly!  An answer choice that tries to justify a congressional action solely based on the necessary and proper clause or the power to act in the general welfare is almost always going to be wrong!  These powers do not exist.  Rather, they are tied to other enumerated powers.  Be aware of how limited the list of enumerated powers actually is and then what tools can be used to expand those powers.