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