MBE Question of the Day – Answer

(A) is the correct answer.

Issue: Whether it is constitutional for Congress to pass a statute criminalizing the negotiation with
foreign governments with regard to disputes with the United States when the party is not someone
authorized by the President.

Rule: Article I, Section 18 of the Constitution gives Congress the authority “To make all laws
which shall be necessary and proper for carrying into execution the foregoing (specific) powers and
all other powers vested by this Constitution in the Government of the United States or in any
Department or Office thereto.” In other words, Congress can use any reasonably related means to
satisfy express (enumerated) powers. The means must be rationally related to the objective, and the
means cannot violate any constitutional provision. Remember that the Necessary and Proper Clause
cannot stand alone as a basis for Congressional power; it must be used in conjunction with an
enumerated power.

Analysis: Here, Congress may pass laws that are “necessary and proper” to execute federal power.
Such power includes the foreign relations power vested in the President. Thus, the statute can be
deemed “necessary and proper” to carry out the President’s foreign affairs power.

(A) is correct because it addresses Congress’s enumerated powers, and that under the Necessary
and Proper Clause, it can act to execute federal power. Here, Congress can act to prevent and
punish unauthorized individuals from influencing foreign governments.

(B) is incorrect because though he president does have inherent power to negotiate with foreign
countries, the president does not have the power to punish individuals who negotiate with foreign
countries.

(C) is incorrect because it is irrelevant; the First Amendment is not triggered here. Negotiating
with foreign governments is not a First Amendment right. Moreover, laws regarding “foreign
relations” may implicate the First Amendment, depending on the nature of the law.

(D) is incorrect because it is not a true statement. All criminal laws must be sufficiently specific in
order to comply with due process.