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.