Constitutional Law - Section 3
Final Examination
Professor Harpaz
December 13, 2012

Question I
(Suggested time: 60 minutes) (48 out of 144 total exam points)

    The State of Stone recently enacted the Imitation Maple Syrup Act of 2012. The Act requires that all maple syrup sold within the state that contains less than 75 percent real maple syrup be labeled “Imitation Maple Syrup.” The Act defines imitation maple syrup as “a syrup that simulates maple syrup in its looks, smell, and taste, but which contains less than 75 percent real maple syrup.” Imitation maple syrup can be labeled as pancake syrup or other similar terms without including the term “imitation.” The labeling requirement only applies if the product is labeled “maple syrup.”

    The adoption of the Imitation Maple Syrup Act was supported by consumer groups as part of a movement to promote truth in packaging. The Act’s supporters claimed that consumers were entitled to know whether the maple syrup they purchased was real or imitation. The Act was also supported by the Stone maple syrup industry. Spokespersons for the industry argued that Stone residents might want to support the local maple syrup industry by buying real maple syrup and, therefore, had a right to know the kind of maple syrup they were buying. The Stone maple syrup industry has recently begun airing an advertising campaign to promote the sale of maple syrup made in Stone using the slogan, “Get real. Reject imitation. Buy authentic Stone maple syrup.” A political action committee created by the maple syrup industry lobbying group donated a significant amount of money to the campaigns of members of the Stone legislature who supported the Imitation Maple Syrup Act.

    Confederated Syrup, Inc. (CSI), an out-of-state company that is a major producer of imitation maple syrup sold in supermarkets and grocery stores throughout the United States, brought suit against the State of Stone claiming that the Imitation Maple Syrup Act violates the U.S. Constitution. The labels on the CSI line of maple syrup do not contain the word “imitation.” Under the Stone Act, CSI would be required to label its maple syrup as “imitation maple syrup” in order to continue to sell the product in Stone. CSI estimates that compliance with the Act will impose additional costs of $ 1 million on it each year. It also estimates that industry-wide cost increases for companies that sell imitation maple syrup in Stone will be approximately $ 5 million dollars per year. All of those companies are located outside of Stone and none have production facilities in the State of Stone. Total industry profits from sales of imitation maple syrup in Stone were $ 20 million in 2011.      

    CSI claims that its maple syrup products are labeled to comply with the Federal Food and Drug Administration’s (FDA) labeling requirements which seek to protect consumers from misbranded foods being shipped in interstate commerce. The FDA’s informative labeling requirements are designed to protect consumers from false and misleading labeling of foods that adversely impact nutrition. Those requirements provide that a product must be labeled “imitation” only when its nutritional content is inferior to the nutritional content of the food it imitates. Since the imitation maple syrup sold by CSI is the nutritional equivalent of real maple syrup, the CSI labels are not required to include the word “imitation” to comply with federal law. The FDA maple syrup labeling requirements include the following provision: “These labeling requirements shall not preclude any state from imposing additional labeling requirements consistent with the FDA labeling requirements.”

    You are a law clerk to the judge assigned to CSI’s lawsuit challenging the constitutionality of the Imitation Maple Syrup Act of 2012. The judge asks you to write an analysis of the arguments that CSI can make to argue that the Act is unconstitutional as well as the arguments that the State of Stone can make to argue that the Act is constitutional.


Question II
(Suggested time: 75 minutes) (60 out of 144 total exam points)

    In 2011, Congress held hearings about the shortage of skilled workers to fill jobs requiring high tech training and skills. Witnesses testified that this shortage is a drag on the U.S. economy because businesses that are unable to hire sufficient numbers of skilled workers suffer in terms of lost productivity as well as in their ability to be competitive in a global economy. To address this worker shortage, Congress enacted the Technology Workforce Training Act (TWTA) of 2011 as an amendment to the Federal Higher Education Act (FHEA) of 1965.

    The goal of TWTA is to create a Technology Training Program (TTP) in every state. TTPs will be made available to eligible participants at no cost to the trainees. The Programs are aimed at long-term unemployed individuals, current employees recommended by their employers to upgrade their skills, and other applicants who show exceptional aptitude for participation in TTPs. Long-term unemployed individuals are defined by TWTA as persons who have been unemployed for 26 weeks or more. A typical state provides for 26 weeks of unemployment benefits so long-term unemployed individuals, as defined by TWTA, are at or near the end of their eligibility for state unemployment benefits.

    TWTA’s preference is for each state to create a state-run TTP. However, if a state refuses to set up a TTP, the federal government will create a Federal TTP for the state. If a state creates a TTP, the state will continue to receive all of the federal funds it currently receives under the FHEA as well as additional federal funds to pay for 95 percent of the costs of its TTP. States that refuse to create TTPs will lose 85 percent of the money they receive under the FHEA for all higher education programs. Federal funds provided to the states under the FHEA amount to about 2 % of the average state’s overall budget and 20 % of state expenditures for higher education.

    Under TWTA, if a state creates a state-run TTP, the state chooses the eligibility criteria for participation in its TTP. These criteria, at the option of the state, may require long-term unemployed residents of the state who are under the age of 40 to participate in the state-run TTP. The U.S. economy, in the view of Congress, is likely to get the most long-lasting benefits from the participation of such persons in a TTP.

    If the state refuses to create a TTP and a Federal TTP is created for the state, the eligibility criteria for the Federal TTP are defined by TWTA. Under TWTA, if a Federal TTP exists within a state, long-term unemployed state residents who are under the age of 40 are required to participate in the Federal TTP. This requirement can be waived in cases of hardship. In addition, if a Federal TTP exists within a state, the state is required to provide the federal government with the names of state residents who are long-term unemployed as defined by TWTA and who are under the age of 40 so that the federal government can enforce the TWTA mandate.
    
    After the enactment of TWTA, the State of Stone refused to create a state-run TTP. As a result, the federal government has now set up a Federal TTP in the State of Stone. Due to Stone’s refusal to create a state-run TTP, federal officials have informed the state that it will lose 85 percent of its FHEA funds for the next fiscal year. The federal government has also asked Stone to provide it with the names of long-term unemployed residents of Stone under the age of 40, as required by TWTA, because such individuals will be required to participate in the Federal TTP in the State of Stone. While Stone has the requested information in a database it maintains, Stone has refused to turn over this information to the federal government.

    The State of Stone has filed suit against the federal government challenging the constitutionality of TWTA. It argues that the expansion of the FHEA to create state-run Technology Training Programs under threat of a state losing 85 % of its FHEA funds violates the Spending Power. It also argues that the requirement that Stone provide the Federal TTP in the State of Stone with the names of long-term unemployed Stone residents who are under the age of 40 violates state autonomy as protected by the Tenth Amendment.

    A related suit has been filed by Amy Andrews (AA). AA is a 30 year old, long-term unemployed Stone resident. The federal government has informed AA that TWTA requires her to participate in the Federal TTP in Stone. AA has filed suit challenging the constitutionality of this requirement on the ground that it exceeds Congress’s power under the Commerce Clause.

    You are a law clerk to the judge assigned to both cases. He asks you to write an analysis of the Spending Power and Tenth Amendment arguments that can be made by the State of Stone and the responses by the federal government to those arguments as well as the Commerce Clause  arguments that can be made by AA and the responses by the federal government to those arguments. While there are other constitutional issues that can be raised, the judge tells you these are the only constitutional issues the judge wants you to include in your analysis.


Question III
(Suggested time: 45 minutes) (36 points out of 144 total exam points)

    In 2011, the State of Stone enacted the Stone Insurance Reform Act (SIRA). The central provision of SIRA is Section 5 which provides:

        Any individual or group health insurance policy which is issued, amended, or renewed on or after July 1, 2011, shall exclude coverage for elective abortions, unless the procedure is necessary to preserve the life of the mother.

Section 5 defines an "abortion" as any means of terminating a pregnancy other than one done with the intent to increase the probability of a live birth, to preserve the life or health of the child, or to remove "a dead or unborn child who died as a result of natural causes," and it defines an "elective" abortion as one performed "for any reason other than to prevent the death of the mother upon whom the abortion is performed."

    The preamble to Section 5 explains the purpose of the provision. It states:

        This Section is designed to save employers money when they provide health insurance coverage for their employees by eliminating unnecessary procedures from insurance coverage. In addition, this Section is designed to show respect for the life of the fetus by removing elective abortions from the list of ordinary medical procedures covered by health insurance.

No other medical procedure was removed from health insurance coverage by SIRA.

    Debbie Drake (DD) is a 26 year old woman who resides in the State of Stone and is employed by Global Industries, Inc. DD receives health insurance through her employer. After SIRA became law, DD was informed by her employer that beginning in 2012 her health insurance would no longer cover elective abortions as defined in SIRA because her employer is obligated to comply with Section 5 of SIRA. As a result, DD has filed suit challenging the constitutionality of Section 5 as a violation of the Fourteenth Amendment Due Process Clause.

    You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the Due Process arguments that DD can make in challenging Section 5 of SIRA as well as the Due Process arguments that the State of Stone can make to defend the law. The judge tells you to only address the Due Process arguments and to ignore the potential impact of the Affordable Care Act on Section 5 in your analysis.

END OF EXAMINATION