Constitutional Law - Section 3

Final Examination

Professor Harpaz

May 10, 2007

Question I

(Suggested time: 60 minutes) (50 out of 150 total exam points)

The State of Southeast recently passed the Illegal Immigrant Marriage Prohibition Act (IIMPA), a law barring illegal immigrants from marrying within the state. The law was enacted to deprive “lawbreakers” of one of the “rewards” available to legal residents. Shortly after the enactment of the law, Andrea Alwood (AA) and Barry Boxer (BB) attempted to obtain a marriage license from the Southeast Marriage License Bureau. AA is an American citizen and resident of the State of Southeast, and BB is an illegal immigrant who has resided in Southeast for 10 years, but does not have a permanent resident card or a visa granting him the right legally to remain in the United States. The couple have lived together for two years and would like to marry because AA recently learned she is pregnant with their first child. When the Southeast Marriage Licence Bureau learned that BB is an illegal immigrant, it refused to issue the couple a marriage license pursuant to IIMPA.

AA and BB have filed suit challenging the constitutionality IIMPA on due process and equal protection grounds. You are a law clerk for the judge assigned to the case. The judge asks you to write an analysis of the due process and equal protection arguments that can be made by AA and BB in challenging the law as well as the arguments that can be made by the State of Southeast in defense of the constitutionality of IIMPA.

For purposes of this question, you should assume that the Supreme Court has never decided how to classify illegal immigrants under the Equal Protection Clause. In analyzing the equal protection challenge, the judge asks you to include in your discussion how she should classify illegal immigrants based on your review of the treatment of racial and gender classifications under the Equal Protection Clause and the characteristics that the Supreme Court has utilized to decide whether a classification should be treated as suspect or quasi-suspect.

Question II

(Suggested time: 60 minutes) (50 out of 150 total exam points)

Texas is home to two of the three slaughterhouses in the United States that process horsemeat for human consumption, with the third operating in Illinois. The Equine Meat Slaughterhouse, Inc. (EMS) is located in Midland, Texas. It slaughters and processes horsemeat and ships it all over the United States and to several foreign countries in the form of patties and steaks. One of its most popular products is the horseburger which contains 85% horsemeat and 15% beef. EMS has a significant number of customers in Oklahoma and it has shipped horsemeat processed for human consumption to Oklahoma for the past 20 years.

Recently the Oklahoma legislature passed Law 66 which makes it illegal to “sell or offer for sale horsemeat as food for human consumption.” The law is one of a number of Oklahoma laws that are designed to protect horses, including laws to encourage the humane treatment of horses, support equine research at state universities, and punish the theft of horses.

Oklahoma permits all other varieties of meat to be sold, including exotic meats such as bison, buffalo, venison, elk and boar. It has also encouraged, through a combination of small business loans and tax breaks, the development of a thriving ostrich industry. The meat of the ostrich has the flavor and texture of beef, but is lower in fat, calories and cholesterol than skinless turkey or chicken. Sam Sandman, an ostrich meat entrepreneur from Bethany, Oklahoma, was one of the principal supporters of the Oklahoma ban on the sale of horsemeat.

Since Law 66 became effective in April, 2007, EMS has been unable to ship horsemeat for human consumption to its customers in Oklahoma. EMS has filed a lawsuit challenging the constitutionality of Law 66. In its lawsuit, it points out that the federal government does not ban the sale of horsemeat for human consumption in any of the provisions of the Federal Meat Inspection Act (FMIA), a federal law that protects consumers who purchase meat products.

Under FMIA, the federal government provides for a system of meat inspection, packaging, and labeling. FMIA does not prevent the sale of horsemeat or any other source of meat for human consumption, it only requires that all food products that contain meat clearly state the precise source of the meat used in the production of the product. For example, if a food product contains horsemeat, the label must clearly state “Contains Horsemeat.”

FMIA contains several references to state law. In one section, it states that FMIA “shall not preclude any state from making requirements, or taking other action, consistent with this Act.” Elsewhere, it provides that “no state shall impose inspection and labeling requirements beyond those required by this Act.”

You are a law clerk to the judge assigned to the lawsuit that EMS has filed against the State of Oklahoma challenging the constitutionality of Law 66's ban on the sale of horsemeat for human consumption. The judge asks you to analyze the constitutional arguments that can be made by EMS in arguing that Law 66 is unconstitutional as well as the arguments that can be made by the State of Oklahoma in defense of the constitutionality of Law 66.

Question III

(Suggested time: 60 minutes) (50 out of 150 total exam points)

The federal government has become increasingly concerned that genetic testing is being used by employers to discriminate against those whose tests reveal genetic predispositions to certain conditions. In order to outlaw this form of discrimination, Congress enacted the Genetic Discrimination in Employment Act of 2007 (GDEA). Under the terms of GDEA, employers may not consider the results of genetic testing in making employment decisions.

Under GDEA, an employer is required to comply with its provisions if the employer “employs 5 or more employees.” The nature of the employer’s business is not taken into account in determining whether an employer is covered by the Act. In addition, states and their subdivisions also qualify as employers under the provisions of GDEA and are subject to its restrictions. Moreover, states must report to the federal government any credible information they receive that GDEA has been violated.

Before enacting GDEA, Congress heard testimony from individuals who were discriminated against in employment because of the results of genetic testing. For example, several women testified that they had been refused a promotion because genetic testing disclosed an enhanced susceptibility for breast cancer and their employers were unwilling to promote them because of fear they might become ill. Congress also heard from individuals who were refused employment because they carried the gene for Huntington’s Disease, a degenerative disorder of the central nervous system.

Representatives from a variety of state agencies also testified. They argued that they should be permitted to take the results of genetic testing into account in choosing who to employ. For example, the head of a special undercover law enforcement task force testified that his task force had refused to employ persons with a genetic marker for a rare condition that reduces a person’s inhibitions. The employment of such persons, the task force head argued, would present a security risk to the safety of undercover operatives. In their testimony, state officials also objected to the reporting requirements of GDEA.

Shortly after the enactment of GDEA, it was challenged by a coalition of states and private employers who are subject to its provisions. The states argue that the law violates their rights under the Tenth Amendment and the private employers argue that the law exceeds the power of Congress under the Commerce Clause to regulate the employment relationship.

You are a law clerk to the judge assigned to the case. The judge asks you to analyze the Tenth Amendment and Commerce Clause arguments that can be made to challenge the constitutionality of GDEA as well as the arguments that the federal government can make in defending the constitutionality of GDEA on Tenth Amendment and Commerce Clause grounds.

Bonus Questions

Each of the following 5 questions (Questions 4 through 8) is worth 1 bonus point toward your exam grade. These points are in addition to the 150 points available for the first 3 exam questions. To answer each question, list the number of the question in your exam answer (blue book or typed exam) and the letter (A, B or C) that is your answer to the question.

4. In his argument in Concerned Parents Involved in Community Schools v. Seattle School District No. 1, Harry J.F Korrell, arguing on behalf of Petitioner Concerned Parents, answered the question posed about whether the school district could take race into account in selecting a site for a new school as follows:

A. The school district could not take race into account in selecting a site for a new school.

B. The school district could take race into account in selecting a site for a new school.

C. The school district could only take race into account in selecting a site for a new school if the school district first had attempted to achieve the goal of racially balanced schools by race neutral means and failed.

5. In his argument in Concerned Parents Involved in Community Schools v. Seattle School District No. 1, Paul Clement, the Solicitor General, arguing on behalf of the United States as Amicus Curiae supporting the Petitioner, answered the question posed about whether the school district could take race into account in selecting a site for a new school as follows:

A. The school district could not take race into account in selecting a site for a new school.

B. The school district could take race into account in selecting a site for a new school.

6. The State of New Jersey refuses to allow out-of-state garbage haulers to use landfills within the state to dispose of garbage. Garbage Haulers, Inc., a Pennsylvania company that collects garbage in Pennsylvania and disposes of it in landfills located in New Jersey, has filed suit to challenge the constitutionality of the law. A challenge to the law is likely to be successful under:

A. The Dormant Commerce Clause

B. The Privileges and Immunities Clause of Article IV, Section 2

C. Both the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV, Section 2

7. The State of Massachusetts discovers a valuable mineral called glassex on land owned by the state. While glassex has been found in several South American countries, the discovery in Massachusetts is the first discovery of glassex anywhere in the United States. Of the three actions described below, which is the least likely to create constitutional problems for the state:

A. The state decides to operate a state-run glassex mining company and sell glassex on the condition that purchasers process glassex within Massachusetts before exporting it to locations outside of Massachusetts.

B. The state decides to operate a state-run glassex processing plant and sell glassex only in its processed state.

C. The state decides to sell the land where glassex was discovered to a private company and condition the sale on the company’s agreement that it will only sell glassex to residents of Massachusetts.

8. Congress enacts the Federal School Safety Act. Under the Act, the federal government provides states with money to improve the safety of their schools. As a condition of obtaining money under the Federal School Safety Act, a state must enact a Gun-Free School Zones Act to make it a violation of state law “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” In ruling on the constitutionality of the Federal School Safety Act, the United States Supreme Court would be likely to:

A. Strike down the Act on the ground that it violates the Commerce Clause as interpreted in United States v. Lopez.

B. Strike down the Act on the ground that it is an unconstitutional exercise of the Spending Power as interpreted in United States v. Dole.

C. Uphold the Act on the ground that it is a constitutional exercise of the Spending Power as interpreted in United States v. Dole.

END OF EXAMINATION