Professor Harpaz
Constitutional Law

Constitutional Law Examination: General Approach

The first important distinction one should make in analyzing an exam question is whether the law being challenged is a federal law or a state law. If the law at issue is a federal statute then it may be possible to argue that Congress has exceeded its regulatory power under the Commerce Clause, but this same argument could not be made if the law at issue is a state statute (or local law). By contrast, if a state statute (or local law) is being challenged, it might violate the dormant Commerce Clause by interfering with interstate commerce, but this same argument would not be available if the law at issue is a federal law because federal laws cannot violate the dormant aspect of the Commerce Clause. Similarly, only state laws (or local laws) can be challenged under the Privileges and Immunities Clause of Article IV, Section 2 and only state laws can be preempted by federal action. By contrast, only federal laws can violate the principle of state sovereignty embodied in the Tenth Amendment. Moreover, due process and equal protection challenges to federal laws arise under the Fifth Amendment and due process and equal protection challenges to state laws arise under the Fourteenth Amendment. Therefore, by focusing on what kind of law is being challenged, you can immediately limit the number of constitutional challenges that are available.

The next issue to confront is exactly what constitutional objections can be made to the law at issue. In some questions, you will be told the issues to discuss. If so, only analyze those issues because you will only be awarded points for discussing the issues you are told to discuss even if there are other potential issues that can be raised.

If you are not told the issues and the law at issue is a federal law, consider what source of power Congress appears to be utilizing to enact the law and whether it could be argued that the law exceeds the scope of Congress’s regulatory authority due to limits on the commerce power and the spending power or restrictions rooted in state sovereignty. Next consider whether the law exceeds one of the affirmative limits on federal power designed to protect individual rights. The only individual rights limits on federal power we studied were Fifth Amendment Due Process and Equal Protection limits on the power of Congress so these are the only limits you need to consider if a federal law is being challenged.

If a state or local law is being challenged, first consider whether you are told of the existence of a related federal law. If you are, this is a clear signal that the question involves an issue of preemption. If there is a preemption issue and the regulation at issue impacts economic interests, you should look to see whether there might also be a dormant Commerce Clause or Privileges and Immunities Clause of Article IV, Section 2 argument available. Finally, you should consider whether any due process or equal protection issues can be raised. It is unlikely that all 5 of these issues will be raised in a single question, but 3 or 4 of them may be. If there is no preemption issue involved, the combination of Privileges and Immunities and dormant Commerce Clause issues can also arise in the absence of a preemption issue. If you spot a due process issue, you should also consider whether the question may involve an equal protection issue as well and visa versa since many laws can be challenged on both grounds.

After identifying the various constitutional issues that are involved, you must start by identifying the standard of review a court would use to analyze each constitutional issue. Sometimes this will be apparent once you identify the issue since a single standard is always used for some types of constitutional challenges. For example, all challenges arising under the Privileges and Immunities Clause of Article IV, Section 2 utilize the same test: (1) Does the state have a substantial reason for treating nonresidents differently; and (2) Does the degree of discrimination against nonresidents bear a substantial relation to the state's objective? This test is always applied after considering three preliminary hurdles: (1) does the state law discriminate against nonresidents of the state; (2) is the law being challenged by a flesh and blood nonresident; and (3) does the discrimination affect the exercise of a right essential to interstate harmony?

By contrast, in other areas of constitutional law, several different tests could apply depending on how one characterizes the law being challenged. A state law that discriminates against interstate commerce is not analyzed using the same test that applies to a nondiscriminatory state law that burdens interstate commerce. Similarly, there are several due process standards and which one applies depends on whether the right at issue is fundamental or nonfundamental. These characterization issues are critical to the remainder of the analysis because the standard applied is often outcome determinative. Each side will, of course, try and characterize the law at issue differently. The government will always want to characterize the law in such a way as to apply the most deferential standard of review available (such as minimum scrutiny in due process and equal protection cases) and the party challenging the constitutionality of the law will always want to characterize the law in such a way as to apply the most rigorous, least deferential standard of review available (such as strict scrutiny in due process and equal protection cases). Both sides must also be prepared to argue in the alternative, in case the court rejects the characterization they suggest.

Once an applicable standard of review has been identified, it is necessary to apply the facts of the question to the standard. This often, but not always, involves an evaluation of both the legislative means as well as the legislative ends and the extent of the relationship between the two. In writing an exam answer, try and avoid reaching conclusions without providing a supporting rationale for your conclusions. This is particularly true when you apply the facts to a standard of review. For example, in applying the strick scrutiny test don’t just say that the means employed are narrowly tailored, but explain, using the facts provided, why the means are narrowly tailored and why there are no less restrictive alternative means available that would be equally effective in achieving the government’s objective.

Questions on the exam will ask you to analyze the arguments available to each of the parties so you have to first be an advocate for one side and then an advocate for the other side. You will not be asked how a judge would decide the case so you do not need to consider how the case will ultimately be resolved. In organizing your answer to an exam question, you can choose to describe a single issue and then provide both the challenger’s argument on that issue and the government’s responsive argument on that issue before going on to the next issue or you can describe all of the arguments available to the challenger before going on to describe all of the arguments available to the government. The choice between these two organizational techniques is a matter of personal preference.

The exam will be graded based on an answer sheet like those posted on the course webpage. The maximum point allocations are based on the amount that one could reasonably say about a particular issue. The more points, the more there is to say. The amount there is to say depends on how complex the standard of review that applies is, how many standards might possibly apply, and how many facts you are given that can be applied to that issue. The more applicable law and facts there are, the higher the point total, the less applicable law and facts, the lower the point total. Therefore, it is a good strategy to start with an issue that has a fairly complex array of applicable law and facts rather than one that is relatively simple. This is because there is a tendency to write more about the first one or two issues you address and less about later ones as the time pressure to finish an answer in the allotted time increases. Given this tendency, it makes sense for the first issue or two you address to be ones where a significant number of points are available. Obviously, if you can’t tell which issues are minor and which are major, begin your answer with an issue you are comfortable with.

The exam will provide detailed information about how much time you should spend on each question and how many maximum points are available for that question. The two will be exactly proportionate to each other. For example, if there are three 60 minute questions on the exam, they may each be worth a maximum of 50 points. If one question is a 60 minute question, one is a 45 minute question and one is a 75 minute question, the point totals might be 40, 30 and 50 respectively. Try and stick to the time limits provided for each question since the last question is worth just as much as the first question in terms of the relationship between the point total and the time allocated.

In trying to stick to the time limits, one thing to avoid is starting your answer by summarizing the facts in the question. This is a waste of time since recitations of the facts in the abstract will not be awarded points. Instead, start your answer by identifying one of the constitutional arguments that can be made and only discuss the facts when you are applying an applicable standard of review to the specific facts given in an exam question. Another way to work efficiently is to briefly outline your answer before you write and check off items on your outline as you finish writing about them. This way you will be able to keep track of what you’ve said and what you haven’t said and avoid duplication.

If you realize you will run out of time before you complete your answer to the last question on the exam, try and outline the rest of your answer. You may be able to obtain several extra points by doing so even though your answer is not complete.