Sample Exam Question - Review Question
1 -
Commerce Clause Issue (NOTE: This is not the same question that is
answered as part of the 2004 Model Answer. That question does not
limit your reply to a single issue, but asks you to discuss all
relevant constitutional issues.)
The suggested time to answer this question is 45 minutes.
The members of Congress have become alarmed at the increasing
popularity of cosmetic surgery in the United States. Over the last five
years, there has been a 400 percent increase in the number of cosmetic
surgery procedures performed in the United States. While some of these
involve relatively minor treatments, others involve major amounts of
expensive reconstruction of the face and body. Congress has concluded
that this trend has been fueled by the fact that we are increasingly a
society that worships youth and youthful appearance, by the popularity
of television shows such as Extreme Makeover and by the aging of the
baby boom generation. However, among the more surprising trends
identified by Congress is the fact that the percentage increase in
cosmetic surgery is just as high among people between 20 and 30 as it
is among those who are over 50.
The boom in cosmetic surgery procedures has been an enormous economic
benefit to the cosmetic surgery industry. This includes physicians,
hospitals, day clinics where many minor procedures are performed, drug
companies, makers of devices such as implants, to name some. In its
investigation, Congress learned that cosmetic surgery is a relatively
unregulated part of the health care industry. There is no special
certification for physicians in cosmetic surgery. Therefore, physicians
who have been certified in any field, no matter how unrelated to
cosmetic surgery, can perform cosmetic surgery procedures. Moreover,
there are no waiting periods or any other checks on the decision to
completely change one’s appearance through surgical procedures.
In order to deal with some of the excesses that have occurred, Congress
enacted the Federal Cosmetic Surgery Protection Act (FCSPA). The
Secretary of the Department of Health and Human Services (HHS) is
charged with the enforcement of FCSPA. Under the statute, a person is
not permitted to undergo a major cosmetic surgery procedure, except
where necessary for the physical health of the person or to correct a
major physical abnormality that interferes with normal appearance,
unless approved by a Cosmetic Surgery Approval (CSA) Panel created at
each facility licensed to perform cosmetic surgery. The statute does
not apply to minor procedures that can be performed in a physician’s
office such as Botox injections.
The CSA Panel shall consist of 3 physicians and a patient advocate.
Three of the four Panel members must vote to approve a cosmetic surgery
request for it to proceed. Patients whose requests are denied may ask
for reconsideration of the decision and, if unsuccessful, may seek
judicial review.
Adam Audrey is a 25 year old man from Gary, Indiana who wishes to
undergo extensive plastic surgery to change his appearance. He is
seeking a nose job, chin and cheek implants, and an eye lift. Since
childhood Mr. Audrey has been unhappy with his looks and was often
ridiculed by other children because of his appearance. Mr. Audrey hopes
the cosmetic surgery will help him to more fully enjoy life because he
will no longer be uncomfortable with social interactions.
Mr. Audrey consulted with a reputable cosmetic surgeon in Chicago,
Illinois. The surgeon agreed to perform the procedures he requested. As
required, the surgeon submitted Mr. Audrey’s request to the CSA Panel
at the Chicago medical facility where the surgery was to be performed.
After reviewing his case, the Panel rejected Mr. Audrey’s request on
the ground that the planned surgery was extensive and unnecessary for
someone of Mr. Audrey’s appearance, which the Panel considered to be
within the range of average for men of his age.
Mr. Audrey is very upset that his request to proceed with cosmetic
surgery was denied. He believes that a decision to have the surgery is
one he should be permitted to make free of federal government
involvement. After consulting a lawyer, he filed suit against the
Secretary of HHS to challenge the constitutionality of the Federal
Cosmetic Surgery Protection Act. Mr. Audrey is arguing that the federal
government lacks power under the Commerce Clause to enact the Federal
Cosmetic Surgery Protection Act (FCSPA).
You are a law clerk to the judge assigned to the case. The judge asks
you to write an analysis of the Commerce Clause arguments that can be
made by Adam Audrey in challenging the constitutionality of FCSPA as
well as the Commerce Clause arguments that can be made by the Secretary
of HHS in defending the constitutionality of the statute.