Constitutional Law - Section 1
Final Examination
Professor Harpaz
May 10, 2004
Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)
The State of Northeast is anxious to promote new business initiatives within the state to jumpstart its flagging economy. It believes the future lies with young entrepreneurs who will bring creativity to the development of new business ventures. To cultivate such entrepreneurs, it has funded a program called GATES (Government Alliance to Train Entrepreneurs for Success).
The program is state-financed and operates in association with the state university business school. However, GATES participants, called Apprentices, are not training to receive a degree in business. Instead, GATES Apprentices are trained by a group of retired businesspeople who have successfully started and run thriving businesses. The goal of the program is to help all of the GATES Apprentices take an idea they have for a new business through the development stage until the business is up and running. Northeast hopes that, as the result of the GATES program, it will help to develop a variety of new businesses that will stimulate its economy.
GATES provides its Apprentices with a variety of benefits in addition to the training and supervision they receive while they are in the program. They receive low interest loans to finance the costs of starting their businesses. They receive a state income tax deduction for half of the profits they earn in the first five years of the operation of their businesses. They receive ongoing consulting services at no cost from the GATES staff of experienced businesspeople.
The GATES admissions process is highly competitive. It is presided over by the GATES Admissions Committee, a committee of three successful entrepreneurs hired by Northeast to screen the applications and select 10 Apprentices to participate in the program each year. The GATES program received 1000 applications from applicants wanting to be among the first group of ten Apprentices scheduled to begin their training in September, 2004.
The application process requires the applicants to describe their educational and business background, supply references, describe an idea for a new business they wish to develop, and participate in a round of interviews. Additional qualifications include the fact that Apprentices must be residents of Northeast at the time they apply to the program and must promise they will locate their businesses in Northeast during the time they are receiving benefits from the state, a period the state estimates to be 5 years from the time they complete the GATES program.
In addition to these requirements, the state also believes that the future success of the program in developing new businesses to help improve the state’s economy will be served by making sure that women are adequately represented in the program. National statistics indicate that women lag behind men in becoming business entrepreneurs, but those women who do start businesses are more likely to develop profitable businesses than their male counterparts.
Of the 1000 applications it received for the 10 places available for the first year of the GATES program, the state received 250 applications from women and 750 from men. To assure a reasonable gender balance, the state instructed the Admissions Committee to select a critical mass of women even if the Committee, to accomplish this goal, had to apply more lenient admissions standards for women. The one admissions standard that could not be compromised, however, was the strong likelihood of success of the new business idea that each applicant presented. After the completion of the admissions process, 4 women and 6 men were selected.
Martha Miller is a resident of the nearby State of Midatlantic. She applied for a place in the GATES program. She promised the Admissions Committee that she would set up her new business in Northeast and operate it there for five years as required by the GATES program. She did, however, admit that after five years she would probably relocate the business to Midatlantic. The GATES Admissions Committee informed Ms. Miller that they were rejecting her application because she was not a resident of Northeast as required by the program. They also told her that she probably would have been selected as an Apprentice, but for her out-of-state residence.
Larry Livingston has lived in Northeast all of his life. He applied to the GATES program as well. He was turned down by the GATES Admissions Committee despite presenting outstanding credentials and a first rate idea for a new business. The Admissions Committee explained that it was extremely competitive for a male to be selected for the program because of the program’s desire to include a critical mass of women in the program.
Both Martha Miller and Larry Livingston have filed suit challenging the constitutionality of the admissions criteria used by the GATES program. Martha Miller argues that she was unfairly discriminated against because of her residence. Larry Livingston argues that he was unfairly discriminated against because of his gender.
You are a law clerk to the judge assigned to both cases. The judge has asked you to write an analysis of the cases that describes the constitutional arguments that can be made by both Martha Miller and Larry Livingston in challenging the constitutionality of the GATES admissions criteria as well as the constitutional arguments that can be made by the State of Northeast in defending the admissions criteria.
Question II
(Suggested time: 60 minutes) (50 out of 150 total exam points)
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. In the last year alone, the increase in cosmetic surgery has soared by 150 percent. 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 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.
You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the case that describes the arguments that can be made by Adam Audrey in challenging the constitutionality of FCSPA as well as the constitutional arguments that can be made by the Secretary of HHS in defending the constitutionality of the statute.
Question III
(Suggested time: 60 minutes) (50 out of 150 total exam points)
The California legislature has adopted a law called the Humane Trapping Law (HTL) that bans the use of certain traps to capture or kill fur-bearing animals. The purpose of the law is to avoid unnecessarily cruel treatment of animals. It specifically provides: “It is unlawful for any person to trap any fur-bearing animal with any body-gripping trap. A body-gripping trap is one that grips the animal's body or body part, including, but not limited to, steel-jawed leghold traps, padded-jaw leghold traps and snares. Cage traps, nets and common mouse traps shall not be considered body-gripping traps.” Violations of the law are punishable by fine and imprisonment.
The California law has provoked outcry from some environmentalists while being praised by many animal rights activists. The environmentalists have argued that the law undermines efforts to protect endangered species, particularly birds, which are prayed on by certain fur-bearing animals. Body-gripping traps are the most effective means of trapping animals that are particularly dangerous to birds, such as foxes and racoons. While other types of traps can be used, they are not as likely to successfully trap a fox or other animals that prey on birds.
Recently, Jemma Johnson, a professional trapper who resides in California, was arrested and charged with violating the HTL. She was caught using a body-gripping trap to catch a fox that was roaming the grounds of a state-operated bird sanctuary with a large population of endangered migratory birds. Ms. Johnson is both a commercial trapper who ships the hides of fur-bearing animals that she traps to a company in Nevada to make into various items of clothing as well as a part-time state employee who has been hired by the State of California to carry out trapping operations in several state-operated bird sanctuaries to protect the birds from animals that prey on them. As part of her part-time employment arrangement with the state, she is permitted to sell the hides of animals that she traps while employed by the state. Ms. Johnson was working as a state employee in trapping the fox that resulted in her arrest.
Ms. Johnson is one of a group of trappers that California has hired to protect endangered migratory birds found within the state because federal law, under the provisions of the Federal Endangered Migratory Birds Act (FEMBA), requires that the state hire trappers to protect birds listed in a federal registry of endangered migratory birds. Birds included in the federal registry are found in each of the state-operated bird sanctuaries in California.
FEMBA bans trafficking in endangered migratory birds including the buying, selling, importing, and exporting of such birds. It is a federal offense under FEMBA to harm birds protected by the Act. Congress protects such birds because it has concluded that the extinction of endangered migratory birds would prevent future commerce in such birds and would preclude the development of beneficial products derived from the birds or their genetic material. Enforcement of the Act is by the Department of the Interior. In addition to federal enforcement efforts, states are obligated to take steps to protect migratory endangered birds while they are present within the state. A state’s FEMBA obligations include the employ of professional trappers to capture predators that prey on endangered migratory birds. Under the terms of the Act, state-employed trappers are authorized to use the most effective methods available to trap such predators.
While admitting that she violated the HTL, Ms. Johnson has raised several constitutional arguments in her defense. First, Ms. Johnson argues that the HTL violates the Dormant Commerce Clause by unreasonably burdening her interstate trapping business. After a decade of declining sales, fur is once again catching on in popularity. Fur sales are a billion dollar business in the United States. Global fur sales have soared to over 10 billion dollars annually. Last year Ms. Johnson earned $30,000 by selling fur hides to the clothing industry. Second, Ms. Johnson argues that the HTL, as applied to her, is preempted by FEMBA because FEMBA obligates the state to allow state-employed trappers to trap predators using body-gripping traps. The State of California, in response, argues that the Dormant Commerce Clause does not bar the application of the HTL to Ms. Johnson, the HTL, as applied to Ms. Johnson, is not preempted by FEMBA and, even if it is preempted, the FEMBA mandate that it employ trappers authorized to use the most effective methods available to capture predators that prey on endangered migratory birds is a violation of the Tenth Amendment.
You are a law clerk to the judge assigned to the case. The judge has asked you to write an analysis of the case that describes the arguments that can be made by Jemma Johnson in challenging the constitutionality of the Humane Trapping Law on the grounds described in the previous paragraph as well as the arguments that can be made by the State of California in defending the constitutionality of the HTL on the grounds described in the previous paragraph.
END OF EXAMINATION