Review Question 1 - Sample Answer and
Grading Sheet
Below are both a sample answer to Review Question 1 and a grading
sheet for the question. If you have written out an answer, you might
want to grade your own answer using the grading sheet. In evaluating
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answer to a
particular question do not get all of the points allocated
to a question. For information on the range of points awarded on a
typical exam, see the description of Grading
Sheets and Grading.
Review Question 1 - Sample Answer
Adam Audrey (AA) would argue that FCSPA is a violation of the Commerce
Clause in Article I, Section 8 which gives Congress the power to
regulate interstate commerce. Adam would first argue that interfering
with a patient’s decision to have cosmetic surgery is a local activity
(category 3) and not interstate commerce itself. Therefore, Congress
can only
regulate the decision to have cosmetic surgery if it can show that the
decision has a substantial economic effect on interstate commerce.
Moreover, the activity is noneconomic and therefore it must satisfy the
stricter standard found in Lopez and Morrison.
The decision to have cosmetic surgery is a personal decision in which
an individual makes a life altering decision to change their
appearance. This is not an economic activity. While cosmetic surgery is
a commercial enterprise, Congress is not regulating the economic
aspects of that activity, but only the personal decision of the
patient. It is attempting to discourage such surgery on moral and not
economic grounds.
Because it is a noncommercial decision, the government must show there
is a direct and substantial relationship between its effort to
discourage cosmetic surgery and an effect on interstate commerce. It
cannot rely on a series of attenuated links in a chain of reasoning
that link discouraging cosmetic surgery to saving the patient money to
the patient having more money to spend on other consumer goods and
services to patients in the aggregate who are rejected by the Cosmetic
Surgery Approval Panel spending the money they have saved and
stimulating the economy. This is the sort of limitless argument whereby
any activity, in the aggregate, can be linked to interstate commerce.
This is the kind of argument rejected by the Court in Lopez and
Morrison because Congress has no general police power.
In addition to the lack of a direct link to interstate commerce, FCSPA
also lacks other factors that might influence a court to uphold the
legislation. AA would argue the statute does not contain a
jurisdictional element limiting its reach to situations where a
specific link to interstate commerce can be demonstrated such as in the
case of patients who have come from other states to have such surgery.
In addition, while Congress has made some findings those findings are
not determinative and, in addition, the findings only show that there
has been a steep rise in people having plastic surgery. The findings do
not show the connection between the steep rise and a substantial impact
on interstate commerce. While the steep rise in cosmetic surgery has
helped the industry to be more profitable, Congress is not acting to
improve the economic situation of the cosmetic surgery industry. It is
trying to discourage such surgery. Further the area it is regulating,
the doctor/patient relationship, is not one that has been traditionally
regulated by the federal government. State governments are the ones who
license physicians, discipline physicians who commit malpractice and
regulate other areas related to FCSPA. When the federal government
intrudes on
an area of traditional state control, a court is less likely to uphold
the federal action.
Even if the decision to have cosmetic surgery is characterized as an
economic activity, AA will argue in the alternative that the law is
unconstitutional because Congress could not rationally conclude that
such decisions in the aggregate have a substantial economic effect on
interstate commerce. Congress is depressing the market for
cosmetic surgery, but cosmetic surgery is not like wheat or some other
product sold in interstate commerce so decisions about whether to
purchase this medical procedure do not have a substantial economic
effect on interstate commerce. Moreover, such procedures are not
usually covered by health insurance so that eliminating unnecessary
surgeries will not reduce the costs of health insurance, but will only
redirect discretionary spending by consumers to other activities.
This economic effect is not sufficient to justify the federal law under
the Commerce Clause.
By contrast, HHS will argue in defense of FCSPA. First it will argue
that the decision to have cosmetic surgery is an economic activity. The
patient is deciding to purchase a medical service for which the patient
will have to pay a significant amount of money. This is a commercial
exchange and not a noneconomic activity.
Because it is an economic activity, the federal government will only
need to satisfy
the more lenient standard from Wickard v. Filburn and other cases such
as the Heart of Atlanta Motel case. It will
only need to show that Congress could have rationally concluded that
regulating cosmetic surgery will have a substantial economic effect on
interstate commerce in the aggregate. It can show that patients will
not need to take time off from work because of unnecessary surgery,
there will be lower rates of medical malpractice because there will be
fewer surgeries thus avoiding a drain on the economy, and patients will
have more money to spend on other goods and services, thereby
stimulating other more important parts of the U.S. economy. This
satisfies the test used by the Court.
Moreover, HHS argues that even under the stricter test of Lopez used if
the regulated activity is considered to be noncommercial, the law
should be upheld. AA traveled in interstate commerce to seek medical
treatment so there is a direct link between his individual circumstance
and interstate commerce. Moreover, there is a direct and substantial
relationship between the regulated activity, avoiding unnecessary and
expensive surgery, and an economic effect on interstate commerce.
Avoiding patients paying for surgery they may not be able to afford
will avoid a drain on the economy, avoiding potential botched surgeries
will avoid a further drain on the economy and keeping patients from
taking time off from work to recover from surgery will improve worker
productivity and will add more money to the consumer economy. These are
direct effects of FCSPA and should result in the statute being upheld.
Question One Grading Sheet
Federal Cosmetic Surgery Protection Act (40 points)
Congress has power to reg local commerce when it has a subl eco effect
on IC-category 3(3 pts)____
is CSPA a reg of eco or noneco activity-Lopez vs. Wickard v.
Filburn-identify issue(1)____
Gov't argues cosmetic surgery (CS) is an eco activity-profit making,
sale of
service(3)____
AA argues gov’t reg. of decision to get surgery is reg of a personal
choice
not eco activity(3)____
if eco-could Cong have rat’ly concluded surgery decision in aggregate
has
subl eco effect on IC(3)____
big interstate business-patients travel, drugs, implants, etc; but gov
reg
limits surgery-effect of depressing eco, but still eco effect; frees up
$; avoids eco effects of unnec’y/failed CS(6)____
if noneco activity-use Lopez factors to analyze whether w/in scope of
Commerce Power(1)____
jur’l element- no jur’l element-under statute no need to show effect on
IC in indiv case(3)____
some findings made by Congress, but do they show connection between
surgery & IC(3)____
direct & subst’l effect on IC?-AA traveled interst-nexus to IC; CS
is a major eco activity; affects # of CSs; frees up $, but reg. of
decision so long series of links in chain-limitless arg(6)____
aggregate effect on IC or must challenger show affect in each
individual case(3)____
area trad’ly reg’d by states or fed?-no regs on CS; health care-fed’l
role, but also states(2)____
Miscellaneous______________________________________________________(3)____