Constitutional Law on the NextGen Bar Exam
Constitutional Law is the subject where strong candidates separate themselves. It's also where average candidates lose the most points through sloppy analysis — usually by picking the wrong tier of scrutiny or skipping standing entirely. The exam rewards methodical issue-spotting more than encyclopedic knowledge.
Standing is the gatekeeper. Before you touch the merits of any constitutional claim, you must address standing — and the exam will try to trick you into skipping it. The Lujan three-part test (injury-in-fact, causation, redressability) sounds simple, but the "injury" prong is where candidates stumble. The injury must be concrete and particularized, not speculative. "I might be harmed someday" doesn't cut it. Organizational standing adds a layer: at least one member must have individual standing. If you forget to run standing before diving into equal protection analysis, you've likely missed the actual issue being tested.
The Fourteenth Amendment is the single most tested constitutional provision on the exam. Equal protection and due process questions follow the same structural pattern: identify what's being classified or what right is at stake, select the tier of scrutiny, apply it. That selection step is where the points live. Race and national origin get strict scrutiny. Sex and legitimacy get intermediate. Everything else — age, disability, wealth, economic regulation — gets rational basis. The exam loves to present a classification that feels unfair (say, age-based) and see if you'll incorrectly apply strict scrutiny because of emotional reaction rather than doctrinal analysis.
The Commerce Clause post-Lopez framework tests whether Congress can regulate: (1) channels of interstate commerce, (2) instrumentalities, or (3) activities with a substantial effect on interstate commerce. The third category is where exam questions live, because it has limits — Lopez drew the line at purely local, non-economic activity. NFIB v. Sebelius reinforced this: the individual mandate couldn't be sustained under the Commerce Clause because it compelled activity rather than regulating existing activity.
First Amendment questions hinge on one distinction above all others: content-based vs. content-neutral. Content-based restrictions get strict scrutiny and almost always fail. Content-neutral restrictions get intermediate scrutiny under O'Brien and usually survive if narrowly tailored to a significant government interest. The public forum doctrine layers on top — traditional public forums (streets, parks) get the strongest protection.
A pattern worth noting: about 40% of Con Law questions on past bar exams were really standing or state action questions disguised as substantive constitutional issues. Check both threshold requirements before you start the merits analysis.
Exam Tips
- Standing first. Always. If you skip standing and go straight to equal protection, you've probably missed the issue the question is actually testing.
- Tier of scrutiny selection is the money move on equal protection questions. Race/national origin = strict. Sex/legitimacy = intermediate. Everything else = rational basis. Don't let emotional facts override the doctrinal classification.
- First Amendment: identify content-based vs. content-neutral before anything else. Content-based = strict scrutiny (almost always fatal). Content-neutral = intermediate scrutiny (usually survives).
- State action requirement catches people: private conduct doesn't trigger constitutional protection, even if it's discriminatory. Look for state involvement, public function, or significant entanglement.
- For due process, split procedural from substantive immediately. Procedural = Mathews v. Eldridge balancing. Substantive = is it a fundamental right? If yes, strict scrutiny. If no, rational basis.
Key Rules to Know
- Lujan standing: concrete injury-in-fact + fairly traceable causation + redressability by favorable decision
- Lopez Commerce Clause: channels, instrumentalities, or activities with substantial effect on interstate commerce
- Strict scrutiny (race, national origin, fundamental rights): compelling interest + narrowly tailored — almost always fatal
- Intermediate scrutiny (sex, legitimacy): substantially related to an important government interest
- NFIB v. Sebelius: Commerce Clause doesn't allow compelling activity — only regulating existing activity
Sample Practice Questions
Congress enacts a statute authorizing the Environmental Protection Agency (EPA) to set "fair and reasonable standards" for regulating emissions from a newly discovered industrial pollutant, without providing any further guidance, definitions, criteria, or policy objectives to constrain the EPA's discretion. A group of affected manufacturers challenges the statute as an unconstitutional delegation of legislative power. The government defends the statute by arguing that the EPA possesses the requisite scientific expertise to make such determinations. How should a court rule on the non-delegation challenge?
- The statute is unconstitutional because Congress failed to provide an intelligible principle to guide the EPA's exercise of delegated authority.
- The statute is constitutional because the phrase "fair and reasonable standards" provides a sufficiently intelligible principle to guide the EPA's discretion.
- The statute is unconstitutional because Congress may not delegate regulatory authority over newly discovered pollutants, as this involves a major question requiring express congressional authorization.
- The statute is constitutional because the non-delegation doctrine has been implicitly overruled and is no longer enforceable.
Show answer
Correct: The statute is constitutional because the phrase "fair and reasonable standards" provides a sufficiently intelligible principle to guide the EPA's discretion.
Under the non-delegation doctrine, Congress must provide an 'intelligible principle' to guide the agency's exercise of delegated authority. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). The Supreme Court has consistently applied this test with great leniency. In Whitman v. American Trucking Associations, 531 U.S. 457 (2001), the Court upheld a delegation to set air quality standards 'requisite to protect the public health' with an 'adequate margin of safety,' finding this sufficiently intelligible. Similarly, in Yakus v. United States, 321 U.S. 414 (1944), the Court upheld the delegation to set 'fair and equitable' prices. The phrase 'fair and reasonable standards' is analogous to standards the Court has repeatedly upheld. Since 1935, the Court has not invalidated a statute on non-delegation grounds, and agency expertise, while not independently sufficient, reinforces the conclusion that the delegation is permissible.
A state legislature enacts a statute prohibiting any person under the age of 21 from purchasing or possessing a semiautomatic rifle. A 19-year-old resident who wishes to purchase such a rifle challenges the law as a violation of the Second Amendment. The state defends the statute by presenting extensive empirical evidence from modern social science studies showing that 18-to-20-year-olds commit violent crimes at disproportionately high rates. Under the framework established by the U.S. Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen (2022), how should the court evaluate this law?
- The court should apply strict scrutiny and determine whether the statute is narrowly tailored to serve a compelling government interest, weighing the empirical evidence presented by the state.
- The court should first determine whether the Second Amendment's plain text covers the challenger's proposed conduct, and if so, require the government to demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation.
- The court should apply intermediate scrutiny, balancing the government's important interest in public safety against the burden the law imposes on Second Amendment rights, giving substantial weight to the social science evidence.
- The court should uphold the statute without further analysis because the Second Amendment only protects the right to keep and bear arms for persons who are members of a well-regulated militia, and a 19-year-old civilian is not a militia member.
Show answer
Correct: The court should first determine whether the Second Amendment's plain text covers the challenger's proposed conduct, and if so, require the government to demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation.
This correctly states the Bruen framework. Under Bruen, courts must apply a two-part test: (1) determine whether 'the Second Amendment's plain text covers an individual's conduct,' and if so, 'the Constitution presumptively protects that conduct,' and (2) the government must then 'justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.' The court must look for historical analogues—not identical historical twins—from the relevant period. Modern empirical evidence alone cannot justify the regulation; the government must identify a historical tradition supporting the restriction. See Bruen, 597 U.S. at 17, 24, 30.
A city enacted an ordinance requiring all owners of residential rental properties to obtain an annual inspection permit costing $150. The ordinance also mandated that, as part of the permit application, landlords must disclose under oath whether they have ever been cited for housing code violations on any property they own, including violations that had been resolved through payment of fines. A landlord who had previously paid fines for several code violations, some of which arguably constituted criminal misdemeanors under state law, refused to complete the sworn disclosure form. The city denied her permit application and imposed daily fines for operating without a permit. The landlord challenges the disclosure requirement. Which of the following provides the strongest basis for the landlord's challenge?
- The $150 permit fee constitutes a per se regulatory taking of the landlord's property without just compensation under the Fifth Amendment.
- The compelled sworn disclosure of prior code violations that could constitute criminal misdemeanors violates the landlord's Fifth Amendment privilege against self-incrimination.
- The permit requirement constitutes an unconstitutional condition because it forces the landlord to waive her Fifth Amendment rights as a prerequisite to exercising her property rights.
- The annual inspection permit requirement effects a regulatory taking under the Penn Central balancing test because it substantially interferes with the landlord's investment-backed expectations.
Show answer
Correct: The compelled sworn disclosure of prior code violations that could constitute criminal misdemeanors violates the landlord's Fifth Amendment privilege against self-incrimination.
Under the Fifth Amendment's Self-Incrimination Clause, a person cannot be compelled to make statements under oath that could expose her to criminal liability. In Marchetti v. United States, 390 U.S. 39 (1968), and Albertson v. SACB, 382 U.S. 70 (1965), the Supreme Court held that the government cannot require individuals to provide information in a regulatory context when that information is directed at an inherently suspect group and could be used to support criminal prosecution. Here, requiring the landlord to disclose under oath prior violations that could constitute criminal misdemeanors directly implicates the privilege against self-incrimination, because the compelled disclosures pose a real and appreciable risk of criminal prosecution.
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