Model Exam Answer
Constitutional Law
Professor Harpaz
Spring, 2004

Question I

Martha Miller’s first constitutional argument is that the State of Northeast has violated the Privileges and Immunities Clause of Article IV, Section II. In making this argument, Martha would first argue that the state program, known as GATES, has differentiated between “flesh and blood” residents of Northeast and nonresidents of the state. Martha would argue that Northeast has done this by requiring that applicants for the GATES Apprentice program be residents of Northeast at the time they apply. Martha would assert she was rejected from the program because she was a nonresident and therefore she is a member of the discriminated against class of nonresidents. Martha would then argue that the discrimination relates to an activity that is essential to interstate harmony, her right to participate in an opportunity to develop a successful business.

After satisfying these two preliminary hurdles, Martha would next argue that GATES does not satisfy the standard of review that courts use to analyze claims under the Privileges and Immunities Clause. That standard requires that the state have a substantial reason for its discrimination against non residents (because they are a peculiar source of the evil the state is attempting to remedy). It further requires that there be a substantial relationship between the degree of discrimination against nonresidents and the state’s important objective. In arguing that the state has not satisfied this standard, Martha would argue that the state’s reason for discrimination is because it is attempting to use state funds to jumpstart the state’s flagging economy. While improving the state’s economy is an important objective, the state has no evidence that nonresident owners of businesses are a drain on the state’s economy or that the businesses that nonresidents operate within the state are not as likely to generate jobs and economic benefits for the state as businesses operated by nonresidents. While the state can argue that state funds pay for the GATES program and nonresidents have not paid state taxes to support the program that argument does not justify the program. First, there is no requirement that to participate you have to have paid taxes nor a requirement that you have been a resident for any specific period of time prior to applying. Thus there is no guarantee that resident applicants will have contributed tax money to fund the GATES program. The state seems to be equating residency with someone who will operate a business within the state beyond the 5 year mandatory time period. The state, however, has no evidence that someone who has a successful business operating within Northeast will be likely to shut it down to move elsewhere just because of the ties of residency. Such a risky business decision is unlikely to be made by someone who has developed substantial contacts within the state. While Martha says she is likely to move, she will likely change her mind after 5 years of successfully operating a business within Northeast.

The state would counter Martha’s Privileges and Immunities argument in several ways. First, it will argue that participation in the GATES program is not a right essential to interstate harmony. Martha is not being deprived of the right to obtain private sector employment in the state (as in Camden and Piper) or start a business in the state. She is only being deprived of the right to participate in a small training program that the state provides to its residents using state funds. This is similar to other welfare benefits that states limit to residents of the state such as unemployment compensation. It is not the sort of right to pursue her occupation within the state that was at issue in earlier Privileges and Immunities cases.

If the state loses on this point, it will go on to claim that is can satisfy the two part standard of review. It will argue that its important reason for discriminating is so it can help residents to develop successful businesses and jumpstart the state’s economy. The state hopes to permanently improve its economy which it believes it can do by developing successful home grown businesses. The state will argue that nonresidents like Martha are unlikely to remain permanently in the state and therefore giving them the opportunity to participate in GATES will not help the state to achieve its objective. As evidence of this fact, the state can point to Martha’s admission that she will likely move her business to Midatlantic once the mandatory 5 year instate time period ends. Therefore, discriminating against nonresidents is substantially related to the state’s goal of developing permanent successful new businesses within the state.

Martha’s next argument is that the state is discriminating against interstate commerce by requiring that GATES participants locate their businesses in the state for a 5 year period. She will frame this argument as a violation of the Dormant Commerce Clause. Under the clause, discrimination (which is what Martha is complaining about) is actionable both when the state is guilty of economic protectionism and when it is discriminating against interstate commerce. Martha will argue the state is guilty of both of these. Evidence of economic protectionism is found in the fact that the state is trying to hoard new business ventures it helps develop and retain them for the benefit of its own state. This is similar to laws that have been struck down on protectionist grounds because they require instate processing as, for example, in the Alaska timber case. Martha will also argue that the state is guilty of discriminating against interstate commerce in requiring the businesses to remain in the state for 5 years. This local business requirement is similar to the requirement in Dean Milk that milk must be processed within five miles of Madison, Wisconsin. Martha will argue that the state has less discriminatory alternatives available to protect its state interest. It can require that businesses that are developed under the GATES program can only get low interest loans and other continuing benefits if they are located within Northeast. This would be less discriminatory than a requirement that the businesses must be located within the state. That way the GATES participants can choose whether to be located within the state and get all of the ongoing benefits or be located outside the state and forego those benefits.

Even if Martha wins by convincing the court the law either is an example of economic protectionism or discriminates against interstate commerce, the state can counter these arguments by employing the market participant exception. It can argue that the state is participating in the marketplace as, in essence, a venture capitalist. It is funding a small training program or business start-up program, but it is not regulating the behavior of non-GATES businesses within the state. Those businesses are not required to be located in Northeast in order to do business there. It is only controlling the few businesses that it funds. Therefore, it is acting as a market participant and not as a market regulator. Also there is no natural resource, international commerce or downstream impact that deprives the state of this exception. It is only regulating the location of the businesses that it helps to fund and create under the GATES program.

Martha would respond to this argument by claiming that the state is not entitled to the benefits of the market participant exception. Northeast is controlling a “downstream” activity in a market it doesn’t participate in. Northeast participates in the education and training market through GATES, but not in the operation of businesses within the state. Nevertheless it is controlling where those businesses are located. Moreover, the GATES program is unique. There is no private sector equivalent. Therefore, the state has a monopoly over such training programs. Where the state has a monopoly, it is the entire market and thus its actions are not just those of a market participant. Its activity is the functional equivalent of regulation of the marketplace.

Larry will argue that the state does not have an important reason to justify its discrimination. It is attempting to jumpstart its economy by helping to develop new businesses. The state has no evidence that women business owners are more likely to help the state’s economy than men and therefore the discrimination is not substantially related to the state’s objective. First, the only statistics the state has are national statistics and not statistics about businesses in Northeast. Moreover, the point of the GATES program is to help good business ideas become successful. Thus success rates by gender based on new businesses not assisted by the GATES program do not predict the success rates of the GATES Apprentices. The state should use gender neutral alternatives and evaluate each candidate on his or her merits, focusing on the likelihood a new business idea will be successful. The state’s chosen means are likely to reinforce stereotypes that women are not as effective in the business world as men and need more help to achieve success. The state will have the burden of proving that gender neutral means are not available for achieving its objectives and the state has not demonstrated that it has considered such means and found them to be ineffective.

The state would reply that the state’s objective, helping the state’s economy, would be substantially promoted by the state’s discrimination because the facts show that women who start businesses are likely to be more successful over the long haul. The state is looking for businesses that will have long term and not just short term success and therefore the gender preference is justified. It is substantially related to the goal of improving the state’s economic situation. Moreover, the state will argue that gender has only been taken into account to the degree necessary to accomplish the state’s purpose. Gender is only one factor among others in a holistic appraisal of the applicant. This is consistent with the extent to which race was taken into account in the University of Michigan’s law school admissions process and that process was upheld under a strict scrutiny standard of review which is more demanding than the intermediate scrutiny test Northeast must meet. In addition, the state refuses to compromise the need for an excellent business idea - the real focus of the GATES program. Thus there are no less discriminatory means available because the state’s means are very narrowly tailored to accomplish its objectives. The state will argue that its gender preference is not based on archaic stereotypes, but is instead based on actual statistics that demonstrate that women entrepreneurs are more likely to operate successful businesses over the long haul than their male counterparts.

Question II

Adam Audrey (AA) would argue that FCSPA is a violation of the Commerce Clause in Article I, Section 8 which gives Congress the power to regulate interstate commerce. Adam would first argue that interfering with a patient’s decision to have cosmetic surgery is a local activity and not interstate commerce itself. Therefore, Congress can only regulate the decision to have cosmetic surgery if it can show that the decision has a substantial economic effect on interstate commerce. Moreover, the activity is noneconomic and therefore it must satisfy the stricter standard found in Lopez and Morrison.

The decision to have cosmetic surgery is a personal decision in which an individual makes a life altering decision to change their appearance. This is not an economic activity. While cosmetic surgery is a commercial enterprise, Congress is not regulating the economic aspects of that activity, but only the personal decision of the patient. It is attempting to discourage such surgery on moral and not economic grounds.

Because it is a noncommercial decision, the government must show there is a direct and substantial relationship between its effort to discourage cosmetic surgery and an effect on interstate commerce. It cannot rely on a series of attenuated links in a chain of reasoning that link discouraging cosmetic surgery to saving the patient money to the patient having more money to spend on other consumer goods and services to patients in the aggregate who are rejected by the Cosmetic Surgery Approval Panel spending the money they have saved and stimulating the economy. This is the sort of limitless argument whereby any activity, in the aggregate, can be linked to interstate commerce. This is the kind of argument rejected by the Court in Lopez and Morrison because Congress has no general police power.

In addition, to the lack of a direct link to interstate commerce, FCSPA also lacks other factors that might influence a court to uphold the legislation. AA would argue the statute does not contain a jurisdictional element limiting its reach to situations where a specific link to interstate commerce can be demonstrated such as only to patients who have come from other states to have such surgery. In addition, while Congress has made some findings those findings are not determinative and, in addition, the findings only show that there has been a steep rise in people having plastic surgery. The findings do not show the connection between the steep rise and a substantive impact on interstate commerce. While the steep rise in cosmetic surgery has helped the industry to be more profitable, Congress is not acting to improve the economic situation of the cosmetic surgery industry. It is trying to discourage such surgery. Further the area it is regulating, the doctor/patient relationship, is not one that has been regulated by the federal government. State governments are the ones who license physicians, discipline physicians who commit malpractice and other areas related to FCSPA. When the federal government intrudes on an area of state control, a court is less likely to uphold the federal action.

Because it is an economic activity, Congress will only need to satisfy the more lenient standard from the Heart of Atlanta Motel case. It will only need to show that Congress could have rationally concluded that regulating cosmetic surgery will have a substantial economic effect on interstate commerce in the aggregate. It can show that patients will not need to take time off from work because of unnecessary surgery, there will be lower rates of medical malpractice because there will be fewer surgeries thus avoiding a drain on the economy and patients will have more money to spend on other goods and services, thereby stimulating other more important parts of the U.S. economy. This satisfies the test used by the Court.

Moreover, HHS argues that even under the stricter test of Lopez used if the regulated activity is considered to be noncommercial, the law should be upheld. AA traveled in interstate commerce to seek medical treatment so there is a direct link between his individual circumstance and interstate commerce. Moreover, there is a direct and substantial relationship between the regulated activity, avoiding unnecessary and expensive surgery, and interstate commerce. Avoiding patients paying for surgery they may not be able to afford will avoid a drain on the economy, avoiding potential botched surgeries will avoid a further drain on the economy and keeping patients from taking time off from work to recover from surgery will improve worker productivity and will add more money to the consumer economy. These are direct effects of FCSPA and should result in the statute being upheld.

As a second argument, AA would argue that FCSPA violates the Fifth Amendment Due Process Clause. AA would argue that the decision to have cosmetic surgery is a fundamental liberty right under the Due Process Clause falling within the zone of privacy and should be analyzed under the strict scrutiny standard of review which requires the government to show it has chosen necessary means to accomplish a compelling governmental objective.

As a fundamental right, the government must satisfy strict scrutiny. AA argues the government does not have a compelling reason for the federal law. The facts state the government is unhappy with the explosion in the rates of cosmetic surgery because it does not believe so many people should be deciding to change their appearance when their appearance is normal. This is a moral judgment and the government cannot impose its moral judgments on the country as was seen in Lawrence v. Texas. Moreover, there are less restrictive alternatives available to the government. One of its concerns is that physicians do not have to be licensed as cosmetic surgery specialists to perform such surgery. The government could create a licensing scheme so that unqualified physicians are not licensed to perform such surgery. Moreover, to the extent the problem is unnecessary surgeries, the government could impose informed consent and waiting period requirements like the ones upheld in Casey. These are less burdensome because the decision still remains with the patient even though the government is trying to discourage the patient’s choice.

In the alternative, AA would argue that a court might employ the undue burden test used in Casey. Since both decisions involve medical decisions where the government wants to influence the patient’s choice, a similar test might be employed. Under this test, the government needs a compelling interest, which AA would argue it has not satisfied because it only has a morality justification, and needs to employ a means which, while it may seek to discourage the surgery, cannot impose an undue burden or place a serious obstacle in the path of the person making the decision. In this case, AA would argue the CSA Panel is an undue burden. This should be judged from the point of view of the persons most seriously impacted by the decision. This was true in Casey where the Court viewed the undue burden test as applied to the spousal notification provision from the point of view of married women who feared for their safety if they informed their husbands. Here the relevant perspective is people who are turned down by the CSA Panel such as AA. From AA’s point of view, the panel imposes an absolute barrier to obtaining the surgery and therefore amounts to an undue burden.

In response, AA will argue that the government cannot satisfy minimum rationality. He will argue that the government’s only justification for the law is to control personal decisions that the government does not agree with and that this justification is not legitimate because the government cannot control personal moral choices that do not involve harm to others and are not against the law.

Finally, the government will argue that even if the right to have cosmetic surgery is a fundamental right, it can satisfy strict scrutiny review. Its purpose, to prevent people from unnecessarily risking their health by undergoing risky surgery, is compelling. In addition, the means, the CSA Panel, is necessary to achieve its goal. The use of the Panel is directly related to the government’s objective of preventing unnecessary surgery while allowing those surgeries that are justified. The Panel will separate the sound from the unsound decisions to elect such surgery. Moreover, its composition consists of physicians and a patient advocate so the panel is not biased against patients who choose such surgery. The Panel is much more effective than other methods that rely on convincing patients to change their minds about such surgery and the government is free to choose an effective rather than an ineffective method to achieve its compelling objective.

Question III

Jemma Johnson (JJ) will first argue that the HTL is unconstitutional because it violates the Dormant Commerce Clause. She will first argue that the law is an example of economic protectionism and virtually per se invalid because the state is trying to make it harder to trap fur-bearing animals and will, therefore, be hoarding these animals and not allowing them to be used as part of interstate commerce. Second, JJ will argue that the law discriminates against interstate commerce not on its face but in its effect. This is because most fur trappers intend to ship their furs in interstate commerce so the law disproportionately affects interstate commerce. Even if it is not an example of economic protectionism or discriminatory, the law still imposes an undue burden on interstate commerce. She will point to the fact that because she and other fur trappers will be deprived of the most effective means of trapping they will trap fewer fur-bearing animals and will have fewer furs to ship in interstate and international commerce. This economic burden will not be offset by a more than illusory benefit to the state. While the state will be preventing fur-bearing animals from being caught in body-gripping traps, the animals can still be trapped and killed. Moreover, while it is protecting fur-bearing animals to some extent, that benefit is more than offset by the fact that endangered birds will be killed by the animals it is protecting. On balance, the benefit does not offset the burden imposed on interstate commerce.

The state will refute all of these arguments. It will argue that the state law is not an example of economic protectionism. It is designed to prevent cruelty to animals and not to hoard the state’s resources for its own citizens. Second the law does not discriminate against interstate commerce. It applies equally to instate and out-of-state trappers and to all trapping of fur-bearing animals whether those animals are to be shipped out-of-state or used or consumed within the state. Third, the benefits of the law outweigh its burdens. Its burdens are minimal. Fur trappers can still trap fur-bearing animals and sell the fur in interstate or international commerce. The only restriction is on one method of trapping the animals. JJ has not demonstrated that she will capture any fewer fur-bearing animals than before or that her income or the income of other fur trappers will be adversely affected. Given the minimal burden imposed and since the banned traps have been recognized as imposing unnecessary suffering on animals caught in such traps, avoiding this suffering is a significant benefit and more than offsets the minimal harm to interstate commerce.

The state will also argue that it can rely on the marketplace participant exception even if it is found to have violated the Dormant Commerce Clause. Under that exception, the state can argue that the law is being challenged as applied to JJ and that JJ is a state employee ordered by her state employer not to use body-gripping traps. Under this view, the state is only regulating its own participation in the marketplace not regulating the marketplace.

JJ will respond by arguing that the law regulates all trapping within the state whoever engages in that trapping. Therefore as a general regulation of trapping rather than a special code of conduct applied only to state employees the state is acting as a market regulator and not a market participant. JJ will further argue that even if the state is acting as a market participant, it still cannot rely on the exception. This is because the state cannot use the exception to control access to natural resources or to adversely effect international commerce. The state is guilty of both of these according to JJ. The state is guilty of controlling access to fur-bearing animals, a natural resource of the state. The state is guilty of adversely impacting international commerce because fur sales are a global industry not just an interstate industry.

The state will argue that neither limitation applies. Fur-bearing animals are not the kind of scare resource only available in some states like petroleum or natural gas. Moreover, there is no evidence that fur-bearing animals captured in California are shipped outside the country. JJ’s hides are shipped to Nevada. In addition, there is no evidence that the ban on body-gripping traps has an impact on the supply of hides captured in California and shipped outside the country. Moreover, the state is only regulating the activity it is participating in - fur-trapping. It is not trying to regulate the downstream activity of who the furs are sold to or where they are shipped.

JJ argues that, as a valid federal law, FEMBA preempts the HTL by express preemption, by conflict preemption because it is impossible to comply with both laws, by conflict preemption because the HTL interferes with the accomplishment of the purpose of FEMBA and by preemption of the field of trapping predators of endangered birds.

JJ argues there is a second basis for implied preemption. The HTL undermines the purpose of FEMBA. FEMBA seeks to protect migratory endangered birds by trapping predators that attack such birds including foxes and raccoons. The HTL undermines that objective by preventing trappers from using body-gripping traps that would trap such predators in the most effective way. Therefore, it interferes with the federal objective of trapping these predators.

JJ argues there is also a third basis for implied preemption. FEMBA should be interpreted to fully occupy the field of the protection of migratory endangered birds leaving no room for supplemental state legislation. This is a field that is traditionally within the province of the federal government because only the federal government can effectively protect migratory endangered birds through the use of its commerce power. This field includes laws that specify the methods to be used to trap fur-bearing animals that prey on migratory endangered birds. Thus California is precluded from applying the HTL to trappers it employs to trap animals that prey on migratory endangered birds.

The state argues, in contrast to JJ, that FEMBA does not preempt the HTL. It first argues that FEMBA does not expressly preempt the HTL because FEMBA’s language nowhere states that state laws relating to the same subject as FEMBA are precluded by FEMBA. Indeed, FEMBA requires state cooperation in the federal regulatory program thereby retaining a role for the states in this area of regulation.

The state’s second argument is that there is no implied preemption because it is possible to comply with both FEMBA and the HTL. The HTL outlaws body-gripping traps, but not other effective trapping methods. FEMBA requires effective trapping methods, but does not specify body-gripping traps. Therefore, if JJ were to use another effective trapping method, such as cage traps or nets, she would be in compliance with both FEMBA and the HTL.

The state’s fourth argument is that there is no implied preemption because FEMBA does not fully occupy the field of trapping of fur-bearing animals. FEMBA is designed to protect migratory endangered birds. It protects such birds in a variety of ways including by outlawing trafficking in such birds. The HTL is designed to prevent unnecessary cruelty to fur-bearing animals by regulating trapping methods. This is a different field than the one that is addressed by FEMBA. FEMBA’s only reference to trapping methods is its reference to effective methods to trap predators of migratory endangered birds. It does not specify what those methods are in any specific way. It leaves the details about regulating trapping methods to state law and does not intend to fully occupy the field.

The final argument is made by the state. It argues that even if FEMBA preempts the HTL, it cannot do so by requiring the states to hire trappers like JJ and requiring those trappers to use particular methods of trapping. These aspects of FEMBA violate the Tenth Amendment. The state argues that the Tenth Amendment and the concept of state sovereignty that it embodies precludes the federal government from compelling the states to enforce a federal regulatory program. In the same way that the Court struck down the requirement that state law enforcement officers were required to run checks on prospective gun purchasers to enforce the Brady Act, the court should strike down the requirement that state trappers be required to trap predators of migratory endangered birds to enforce the provisions of FEMBA.

In response, JJ argues that FEMBA does not violate the Tenth Amendment. The Tenth Amendment does not prevent the federal government from regulating the state’s own activities. It only prevents the federal government from ordering to the state to help it to enforce a federal regulatory program against state citizens. In this case, the state is not required to enforce FEMBA’s ban on trafficking in endangered migratory birds, something it could not be ordered to do consistent with the Tenth Amendment. The ban is enforced by federal employees supervised by the Department of the Interior. Instead, the state is only required to use state employees to capture animals that prey on such birds. This is not the state acting in a regulatory role and thus, as in the case where Congress ordered the states not to sell information collected by the department of motor vehicles, there is no Tenth Amendment barrier to this form of regulation.