Constitutional Law - Section 1
Final Examination
Professor Leora Harpaz
May 8, 2013

Question I
(Suggested time: 60 minutes) (1/3 of total exam points)

Two years ago, when faced with a high unemployment rate and in order to create more jobs for state residents, the State of Stone enacted the Excessive Unemployment Law (EUL). The EUL provides that when Stone’s unemployment rate has exceeded the national unemployment rate by at least 2% for 2 consecutive months, the Stone Department of Labor (DOL) shall declare an “unemployment emergency.” During such an emergency, only laborers who are Stone residents or laborers who reside in “nonrestrictive states” may be employed in the construction of government-funded, public works projects. Nonrestrictive states are states that have not enacted laws that restrict Stone laborers from working on public works projects in those states. There are currently 29 states that are classified as nonrestrictive states and 20 states that are restrictive states. The restrictive states are Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Idaho, Iowa, Maine, Massachusetts, Missouri, Mississippi, Montana, Nevada, New Jersey, North Dakota, South Dakota, West Virginia, and Wyoming.

Several months after the EUL went into effect, the DOL declared an unemployment emergency, triggering the operation of the EUL. Since that time the law has been in continuous effect because the state unemployment rate has remained at least 2% higher than the national unemployment rate. As a result, laborers who reside in the 20 “restrictive states” are prevented from working on the construction of public works projects funded by the State of Stone or any of its local government units including counties, cities, and towns.

A lawsuit has been filed by 9 individual residents of a variety of restrictive states who have been employed as construction workers on Stone public works projects in the past and desire to continue to seek such employment in the future and three private corporations who have successfully bid on Stone public works projects in the past and who intend to bid on such projects in the future. In the past, their employees on these construction projects have included the 9 plaintiffs and other workers from restrictive states. If the 3 corporate plaintiffs successfully bid on future public works projects, they desire to once again hire workers from restrictive states.

In challenging the law, the plaintiffs have introduced evidence that the state’s high unemployment rate is due to an absence of skilled workers and is not due to jobs being given to workers from other states. The plaintiffs also claim that workers from the 20 restrictive states who obtain employment on Stone public works projects are no more likely than workers from the nonrestrictive states to contribute to Stone’s high unemployment rate.

The State of Stone, in defending the law, argues that the state has an obligation to its residents to spend state money to improve the state’s economy, with employment being at the heart of its economic success. It also argues that a survey of one recent public works project found that 50% of the workers on the project were from out-of-state. The state defends the decision to bar workers who reside in restrictive states while allowing workers from nonrestrictive states by arguing that Stone residents can obtain work on public works projects in nonrestrictive states so that nonrestrictive states do not contribute to Stone’s high unemployment rate to the same degree.
 
You are a law clerk for the judge hearing the case. The judge has asked you to write an analysis of the constitutional arguments that can be made by the 9 individual and 3 corporate challengers in arguing that the Excessive Unemployment Law is unconstitutional as well as the constitutional arguments that can be made by the State of Stone in defense of the EUL.


Question II
(Suggested time: 60 minutes) (1/3 of total exam points)

Tom Turner and Cathy Carney were married in 2003. In 2005, Tom and Cathy had a son, Eric. Two years later, they had a daughter, Emma. In 2009, Tom and Cathy divorced. Cathy was awarded primary custody of the two children, but Tom was given liberal visitation rights. Since the divorce the children have spent significant amounts of time with both of their parents.

In 2011, Cathy began to receive hormone treatments to begin to transition from female to male. Since that time Cathy, who has changed his name to Charlie, has had several sex reassignment surgeries including a bilateral mastectomy, chest contouring, and a hysterectomy. Charlie has legally become a male and has obtained a new birth certificate which lists his name as Charlie Carney and his gender as male.

As a result of these events, Tom Turner petitioned the family court for a change in the custodial arrangements. Tom asked the court to modify the custody order so that he becomes the primary custodian of his two children. His petition argues that the change in their mother’s gender is confusing for Eric and Emma. He further argues that the children will suffer by being teased by their classmates because they have a transgender parent. He points to an incident in which Eric was asked if his “mom/dad or his real dad was picking him up from school.”

The judge hearing the case asked for a psychological evaluation of the children to learn how they have adapted to the sex reassignment of their primary custodial parent. A psychologist appointed by the judge reported that the children are still confused by the change in their mother, but they are making progress toward adjusting. Despite their confusion, the children understand that Charlie’s physical transformation does not mean Charlie loves them any less. The children report some teasing from classmates although the amount of the teasing is declining. The psychologist’s report recommends that the custodial arrangement remain in place, but that the children be re-evaluated in one year’s time to check on whether their adjustment is progressing. Both Tom and Charlie also hired experts to evaluate the children. Tom’s expert recommends a change in custody so that Tom becomes the primary custodian and Charlie’s expert recommends retaining the current custody arrangement.

After hearing all of the witnesses and examining all of the reports, the judge issued an opinion modifying the custody order to make Tom the primary custodian of the children, but giving liberal visitation rights to Charlie. The judge’s opinion states as follows:

The principal issue in child custody is what is in the best interests of the children. There is no issue in this case of the fitness of either parent. In addition, if Charlie Carney had not changed his gender identity, no change in the custody arrangement would be appropriate. However, while respecting Charlie Carney’s decision to change his gender, his children should not have to suffer from the effects of that decision. Those effects include confusion over the gender identity of their custodial parent and societal discomfort with transgender people and sex reassignment that has already manifested itself in the form of teasing by classmates. To protect the children, the custody order is modified.   

Charlie Carney has appealed the judge’s decision. He argues that the judge’s decision making Tom Turner the primary custodian of the children violates his rights under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

You are a law clerk for the Appeals Court judge assigned to the case. The judge asks you to write an analysis detailing the due process and equal protection arguments that Charlie Carney can make to challenge the change in primary custody as well as the due process and equal protection arguments that Tom Turner can make to defend the change in custody.


Question III
(Suggested time: 60 minutes) (1/3 of total exam points)

Congress recently enacted the Domestic Violence Offender Registration Act (DVORA). DVORA defines a domestic violence crime as any crime that is part of a “pattern of abusive behavior in any relationship when that abusive behavior is used by one partner to gain or maintain power and control over another intimate partner.” Many different state and federal criminal laws can be used to convict a person of a domestic violence crime including, but not limited to, punishment for assault, battery, attempted murder, murder, kidnapping, stalking, harassment, sexual assault, rape, damage to property, and financial crimes. A person convicted of a domestic violence crime is a domestic violence offender under DVORA.

Before enacting DVORA, Congress held hearings. In addition to hearing testimony about the physical and psychological effects of domestic violence, Congress also investigated the economic consequences of domestic violence. Recent studies have estimated that domestic violence costs the U.S. economy more than $10 billion each year. These costs include direct and indirect costs. The direct costs include healthcare services, social and welfare services, counseling, police and criminal justice services, legal services, transportation costs, housing and other refuge services used by victims of domestic violence and their children, and the cost of replacing property damaged by an abuser. In addition, domestic violence imposes significant indirect economic costs on victims, businesses, the public sector, and society as a whole. These indirect costs often relate to the impact of domestic violence on labor force participation and productivity. Reduced earnings and lower productivity are the most prominent indirect costs. Domestic violence often causes victims to miss days of work. 
 
As required by DVORA, the federal government has set up a National Domestic Violence Registry (NDVR). This national registry is modeled after the sex offender registries that exist in each state. The NDVR is available online to state and federal law enforcement officers as well as members of the public. Under DVORA, a domestic violence offender, who at any time after being convicted of a domestic violence crime has either traveled in interstate commerce for any purpose or for any length of time or otherwise affected interstate commerce, shall register with the NDVR. In addition to initially registering with the NDVR, domestic violence offenders are also required to update their registrations if they change their address, their name, their employment, or their student status. The federal criminal penalty for a failure to register or update one’s registration as required by DVORA is up to five years in prison.

In order to gather as much information about domestic violence offenders as possible for the NDVR, DVORA also imposes obligations on the states. States are required to enter on the NDVR the names of domestic violence offenders convicted of state domestic violence crimes immediately after their convictions. This obligation is enforced by a civil penalty. States that violate DVORA by failing to provide information to the NDVR will be penalized by being fined the amount of their federal grant money under the Law Enforcement Assistance Act (LEAA) for the year(s) in which the violation occurs. Grants under the LEAA total about $1 billion per year. The average state receives about $20 million under this program each year, only a small fraction of its annual budget. However, the money is used to fund the hiring of additional law enforcement officers, officers that are critical to public safety.  

Alan Adams (AA) was convicted of a domestic violence offense in the State of Stone. He served a two-year sentence for his crime and was thereafter released from jail. Three years after being released from jail he traveled from Stone to the State of New York to attend a family wedding. He returned to Stone a day later. Even though AA had traveled in interstate commerce, AA failed to register with the NDVR as required by DVORA. After AA’s trip was reported to federal authorities by his ex-wife, he was indicted and charged with a violation of DVORA because he had failed to register as a domestic violence offender on the NDVR. In investigating AA’s case, federal authorities discovered that the State of Stone failed to enter information about AA’s conviction on the NDVR. A civil enforcement action to impose a civil penalty has been brought by the federal government against the State of Stone for this failure.

You are a law clerk to the judge assigned to both AA’s criminal case and the federal government’s civil enforcement action against the State of Stone. AA has filed a motion to dismiss the criminal charge on the ground that the registration requirements under DVORA exceed Congress’s power under the Commerce Clause. In the civil enforcement action, the State of Stone seeks to have the requirement that the state provide information to the NDVR declared unconstitutional on two grounds: (1) it violates state autonomy limits on federal power, and (2) it exceeds the scope of the spending power.

The judge has asked you to write an analysis of the Commerce Clause arguments that can be made by AA in challenging DVORA and the responses to those arguments that can be made by the federal government. The judge also asks you to write a brief analysis of the state autonomy and spending power arguments that the State of Stone can make and the responses to those arguments that can be made by the federal government. The judge tells you to spend the majority of your time discussing the Commerce Clause arguments because she is more uncertain about how to resolve that issue.   

END OF EXAMINATION