Professor Harpaz
Final Examination
Constitutional Law - Section 2
May 12, 2011


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

The Springdale Port is a large port in the State of Stone used for cargo and passenger ships including a large number of cruise ships. Cargo and baggage from ships arriving and departing from the Springdale Port are loaded and unloaded by stevedores. A Stone statute enacted in 2000, the Stevedore Licensing Act (SLA), creates the State Stevedore Commission and regulates the use of stevedores. The SLA has two methods of regulating stevedores. One is the issuance of Port Permits. The other is the operation of a Stevedore Apprentice Program. The state legislator who introduced the SLA stated that his reason for supporting the statute was to reduce property crimes at the Springdale Port and to avoid destructive competition at the Port.

While the State of Stone owns and operates the Springdale Port, the state does not employ stevedores to work at the Port. Instead, the State Stevedore Commission issues Port Permits to private businesses that provide stevedore services. Under the SLA, private businesses must have a Port Permit to provide stevedore services at the Springdale Port. Such permits expire at the end of each year and are subject to annual renewal.

The SLA contains a grandfather clause. Businesses that have been providing stevedore services at the Port since prior to the enactment of the SLA (hereinafter called pre-2000 businesses) are presumptively allowed to continue to provide such services. When pre-2000 businesses apply for a renewal of their Port Permit each year, the SLA presumes that such businesses are entitled to the renewal of their permit because they are providing needed stevedore services. This same presumption does not apply to businesses applying for Port Permits to provide stevedore services at the Springdale Port that only sought to perform such services after the SLA was enacted (hereinafter called post-2000 businesses). Post-2000 businesses may only obtain Port Permits if they are able to demonstrate that the existing Port Permit holders are not adequately serving the needs of the Springdale Port for stevedore services. The State Stevedore Commission has never approved any Port Permits for post-2000 businesses.

There are ten pre-2000 businesses who apply for a renewal of their Port Permit each year. Nine of the pre-2000 businesses are in-state businesses and one is an out-of-state business. About 95 % of the stevedores employed by the ten pre-2000 businesses are residents of Stone. Approximately eight post-2000 businesses apply for and are denied Port Permits each year. Typically, seven of the eight are out-of-state businesses. Of the stevedores employed by these out-of-state stevedore businesses, 95 % are out-of-state residents.  

To provide an adequate supply of stevedores, the SLA also created a Stevedore Apprentice Program to train people to be stevedores. Applicants for the Stevedore Apprentice Program (SAP) are considered by the State Stevedore Commission. Criteria for admission to the SAP include performance on physical ability tests related to the work done by stevedores in moving cargo onto and off of ships, work history, and education. Because there are very few women who work as stevedores, the State of Stone wants to encourage the entry of women into the stevedore profession. Therefore, the SLA provides that women applicants get a plus for their gender when they apply to the SAP although there are no slots specifically set aside for women. The SLA provides that the plus given to women applicants will end when 25 % of the stevedores working at the Springdale Port are female. At the present time, the percentage of women stevedores at the port is under 5 %. Successful completion of the Stevedore Apprentice Program is a significant credential in the employment market. Every person who has successfully completed the SAP has obtained work as a stevedore if they applied for such work.

Constitutional challenges to both the Port Permit system and Stevedore Apprentice Program have been filed. One was filed by Don Drake (DD). DD is the sole owner and operator of a post-2000 out-of-state stevedore business. Most of the stevedores he employs reside out-of-state. DD has applied for a Port Permit for the past four years and been turned down each time on the ground that “the existing Port Permit holders are adequately serving the needs of the Springdale Port for stevedore services.” As a result, DD has filed suit challenging the constitutionality of the Port Permit system. A second lawsuit was filed by Matthew Morris (MM), an unsuccessful male applicant to the SAP.  

You are a law clerk to the judge assigned to both cases. The judge asks you to write an analysis of the constitutional arguments that can be made by DD to challenge the Port Permit system as well as the arguments that can be made by the State of Stone in defending the system. In addition, write an analysis of the constitutional arguments that can be made by MM in challenging the plus given to women applicants for the Stevedore Apprentice Program as well as the arguments that can be made by the state in defense of the constitutionality of the SAP.      


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

In 2009, Congress enacted the Deadbeat Parents Act (DPA). The DPA is enforced by federal criminal prosecutions tried in federal court. The federal statute contains three sections. Under the first section, a parent who fails to pay a legally binding child support obligation established by court order is guilty of a misdemeanor if the child support obligation is in arrears for 6 months or more and the amount owed is in excess of $5000. The second section of the DPA provides for enforcement of the statute by a fine of up to $10,000 or up to 6 months in prison. The enforcement provision is only applicable if (1) the defendant and the child or children for whom the defendant has failed to provide child support reside in different states, (2) if the defendant resides in a state other than the state where the child support obligation was established by court order, or (3) if the defendant has traveled in interstate commerce after the defendant’s unpaid child support obligation exceeded $5000 and was in arrears for 6 months or more. The third section of the DPA provides that “state laws enforcing child support obligations may not impose stricter penalties than are provided under this statute.”  

Congress enacted the DPA because failure to pay child support is a significant contributor to childhood poverty. In enacting the statute, Congress made findings that without the money owed in child support payments, children often are deprived of adequate nutrition. A lack of adequate nutrition contributes to children doing poorly in school.

Carl Chambers (CC), a resident of the State of Connecticut, is subject to a state court order obligating him to pay for the "support and maintenance of a child." The order was issued in 2007 by a court in Massachusetts. At the time, CC was residing in Massachusetts. His child, Amy, was also residing in Massachusetts with Barbara Bradford (BB), CC’s ex-wife. BB was granted sole custody of 6 year old Amy after CC and BB divorced. In 2009, CC moved to Connecticut because of a job opportunity. Shortly thereafter BB and Amy moved to Connecticut where they continue to reside. CC was current with his child support payments until early in 2010 when he lost his job. He is currently $10,000 behind in his child support payments.

BB has asked the U.S. Attorney’s Office in Connecticut to bring federal charges against CC under the Deadbeat Parent Act. Section two, the enforcement provision of the DPA, is triggered by the fact that CC no longer resides in Massachusetts, the state where the child support obligation was imposed. Moreover, CC has taken several short trips to Massachusetts after his “unpaid child support obligation exceeded $5000 and was in arrears for 6 months or more.”

In addition, BB has learned that Connecticut has a Child Support Enforcement Act (CSEA). Under the CSEA, a parent who is a resident of the State of Connecticut who fails to pay a legally binding child support obligation for a child who resides in Connecticut is guilty of a misdemeanor if the child support obligation is in arrears for 6 months or more and the amount owed is in excess of $3000. The CSEA provides for enforcement of the statute by a fine of up to $10,000 or up to 6 months in prison. Under the CSEA, Connecticut can file criminal charges in state court against CC even though the child support obligation was imposed by a Massachusetts court. All that is necessary for the statute to apply is for both the defendant and the child to reside in Connecticut. The CSEA can apply to CC because CC and Amy are both Connecticut residents. BB has also asked the State of Connecticut to file criminal charges against CC under the CSEA.  

CC has come to you for legal advice. He is worried that he may have to defend himself against criminal charges brought under both the DPA in federal court and the CSEA in state court. He wonders whether these two statutes can be challenged on constitutional grounds. He tells you he doesn’t understand how the federal government can prosecute him for inactivity, something he failed to do rather than something he did.

You first inform CC that unfortunately both Connecticut and the federal government can file criminal charges against him without violating the protection against double jeopardy contained in the U.S. Constitution. Therefore, CC will have to rely on other constitutional arguments to challenge the DPA and the CSEA. You tell him you believe he can use the Commerce Clause to challenge the DPA and a preemption argument to challenge the CSEA.  

Your job is to describe to CC the arguments you could make (1) to challenge the constitutionality of the DPA on the ground that it violates the Commerce Clause and (2) to challenge the constitutionality of the CSEA on preemption grounds. You should also describe for CC the arguments that the federal government will make to defend the DPA as a valid exercise of Congress’s power under the Commerce Clause and the arguments the State of Connecticut will make to defend the CSEA against a preemption attack.


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

Congress recently enacted the Federal Document Dignity Act (FDDA). Under the FDDA, states are eligible to receive federal grants to improve their systems for creating and maintaining records of births and deaths that occur within the state. The money is to be used for the purpose of improving the automated systems used for such recordkeeping purposes. States that apply for and receive money under the FDDA are required to issue death certificates for aborted fetuses if the abortion takes place anytime after 13 weeks of gestation (the first trimester). Under the terms of the FDDA, states must issue fetal death certificates that are signed by the physician who performed the abortion and list the gender of the aborted fetus, the mother of the aborted fetus, the father of the aborted fetus if known, and the place where the death occurred (the place where the abortion was performed). In addition, the death certificate must have a place for the name of the fetus. The mother of the fetus must be asked if she wishes to provide a name for the deceased fetus to be placed on the death certificate. A fetal death certificate must be filed no later than 30 days after the date of the abortion that resulted in the death of the fetus.

Congress included the fetal death certificate requirement in the FDDA to give dignity to the potential life of the fetus and to make sure that those involved in the abortion procedure note its significance in ending the life of the fetus. Under the FDDA, fetal death certificates are to be confidential and cannot be accessed by anyone other than the mother of the aborted fetus, the doctor performing the abortion, and state law enforcement agencies for genuine law enforcement purposes only. Fetal death certificates cannot be obtained under the Freedom of Information Act or its state law equivalents since their release would be an “unwarranted invasion of personal privacy.”

The State of Stone applied for and received a grant of federal money under the FDDA. The State is not in compliance with the requirement that the state issue death certificates for aborted fetuses. As a result, the federal government is seeking to void the grant it made to the State. The State is defending its right to keep the federal money on the ground that the condition that it issue fetal death certificates violates the spending power.

You are a clerk for the judge hearing the case. The judge asks you to write an analysis of the arguments the State of Stone can make to argue that the FDDA’s fetal death certificate condition violates the spending power and the arguments that the federal government can make to argue that the fetal death certificate condition does not violate the spending power. In your analysis, the judge reminds you, it is important to remember that one of the limits on the exercise of the spending power is that Congress may not use the spending power to “induce the states to violate other constitutional provisions.” A violation of “other constitutional provisions may provide an independent bar to the conditional grant of federal funds.”

END OF EXAMINATION