That Constitutional Law Question
[Note: I originally published this post this morning. Then, after listening to the stern warning about disclosing information regarding the MBE this morning, I wondered whether there were any rules that would get me in trouble for talking about an essay question after a session had ended but before the whole exam had ended. So I pulled the post and read through all the rules that the state bar association sent me, as well as Rule XII of the Rules Regulating Admission to Practice Law in California, but didn't find anything that made this post objectionable. So here it is.]
A while ago I checked to see what kind of search terms were bringing people to my blog overnight. Here are a couple:
California Bar Exam June 2008 Executive Order
“executive order” “bar exam” 2008 california
So I was right. That second question threw everybody off. Apparently somebody was thrown so hard they even forgot that we are taking the July bar exam, and not the June bar exam, which does not exist.
Basically, I first asked whether there were any executive powers expressly granted to the President by the Constitution that would have authorized the Order. Then I looked to see whether there had been a Congressional delegation of legislative power. For the preemption part, I just discussed the same rules I would use for Congressional preemption, even though I have no idea whether they would actually be used. In the final section, regarding the Fourth Amendment, I basically just went through my outline from state action to reasonable expectation of privacy to the warrant requirement to exceptions to the warrant requirement. I analyzed the “National Security Requests” as though they were warrants and then made comparisons like asking whether the “Secretary of Homeland Security,” who issues the Requests, would be a “neutral and detached magistrate.” Stuff like that.
At least one other person has pointed out, and I agree, that it’s not clear whether that question was a true constitutional law and criminal procedure crossover. The Fourth Amendment discussion is clearly within the purview of criminal procedure, but the analysis was so far afield from every practice question I’ve done that I’m not sure. If I had to guess, I’d say this question will just go down as one of those really weird ones that Professor Sakai will pull out during future BAR/BRI essay workshops to make bar candidates groan and quiver with fear. And he’ll say, “Yeah, that’s right. This was question number two in 2008. How about that?”
Now we’re off to the MBE.
Well, I’ve got to say — though I haven’t passed yet — that I really enjoyed the question. My analysis largely looked like yours with some minor caveats regarding executive orders I had lingering in my head from something. My goal was analysis more than correctness, anyway.
I’m warming to the belief that this will at least be considered a Con Law/Crim Pro crossover, because the overwhelming opinion seems to be that the Fourth Amendment is a Criminal Procedure area. However, I tended to fall into the Jim Harper camp over the Orin Kerr camp in the following:
http://volokh.com/archives/archive_2008_06_01-2008_06_07.shtml#1212693646
Yes, I definitely agree regarding analysis versus correctness. I made sure that everything I wrote fit clearly into a strict IRAC structure. “Hey, look! I’m thinking like a lawyer!”
And after reading the post you linked, I have to agree with Harper, too. I remember when the Fourth Amendment only appeared in my criminal procedure class and I thought, “Hm. That’s odd. The ‘plain meaning’ of the text, or what it appears to say on its face, does not say anything about criminal procedure.” I do remember my criminal procedure professor pointing out that the warrant requirement does not necessarily go part and parcel with the first clause about security: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” Sure seems to stand alone. That’s exactly where I started my analysis on the bar exam, too. Then, once I realized that everybody was drawing a blank, I had fun with it—a lot more fun than I had with the subsequent (and painfully run-of-the-mill) contracts question.
I dont think it particularly lent itself to IRAC. I think you had to discuss that congress’ refusal to pass the legislation was irrelevant because the president could issue the order under some constitutional grant.
most of the points at any rate were on the 4th Amendment. I discussed the applicability of the order to consumers (no expectation of privacy in business’ data) and to businesses (reasonable expectation of privacy). then applied facts (warrant requirement, probable cause showing, no applicable 4A exceptions).
I don’t really consider this a crim pro question just because its 4th amendement, since no crimes were involved. it was mostly a standing question (who has standing to object)
richard