TTTBE #71: Early Answer for Patrons (Patreon)

Okay, #TTTBE fans, it's time for the moment you've all been waiting for:  the answer to the single hardest bar exam question so far:  whether a state can pass what is essentially protectionist legislation in favor of a more scientifically accurate toy manufactured within that state as against less scientifically accurate knockoffs from out of state.

Drum roll, please....

The answer in fact was "B," which means that the amazing Thomas Smith Win Streak (TM) continues.  I would say (and in fact, I do say, on Tuesday's episode) that Thomas's answer mixed together a healthy dose of smart issue-spotting with some good old-fashioned luck.

This question tested your knowledge of two constitutional provisions that are obscure to most laypersons:  the contracts clause, Article I, Section 10, and the dormant (or negative) commerce clause, Article I, Section 8.

Thomas correctly eliminated "C" as being an overly technical reading of interstate commerce, properly reasoning that even in-state activities may have interstate implications.

Thomas also eliminated "A," which was a bit of good luck.  As it turns out, there is in fact a provision in the Constitution that prohibits states from impairing obligations under contracts (the aforementioned contracts clause), but that provision is no longer interpreted expansively enough to prohibit legislation like the one at issue in this question.

That left Thomas choosing between "D" (that states have an interest in promoting accurate scientific information) and "B" (that states are prohibited from passing protectionist legislation that would impose an undue burden on interstate commerce).

The answer is "B" because of the negative implications of the commerce clause.  Since the U.S. Congress has the sole power to regulate "commerce... among the several states" (Art. I, Section 8), it necessarily follows that individual states may not pass regulations that usurp this power away from Congress.  This is called the negative or dormant commerce clause, and the test is as described in Answer B:  does a state regulation unduly burden interstate commerce?  If so, then the activity is prohibited as infringing upon the exclusive domain of the federal legislature.

Congratulations to Thomas, who is now 41-for-71 (57.7%).