Model Answer 2010

Model Answer to Spring, 2010 Examination

Note: This answer contains virtually every possible argument that can be made. Moreover, it was not written within the time constraints of exam conditions. I would not expect even the best student answer to include every one of these arguments. It is provided as an example of how to present the various arguments that are available.

Question I (Channing River Bridge Resident Discount Policy)

   The first argument that MM can make is that the discount policy violates the Privileges and Immunities Clause of Article IV (P and I). MM can make such an argument because the policy discriminates against nonresidents. In addition, MM is a flesh and blood nonresident and therefore he can assert a violation of the Clause. He will next argue that the right he has been denied is protected by the P and I Clause because it is fundamental to interstate harmony. MM argues that the right at issue is the right to travel into or through a state on the same terms as residents. This is a basic right related to the concept of the United States as a single unit without barriers between states. Therefore, it is a right that is essential to interstate harmony. Having satisfied these 3 preliminary hurdles, MM will argue that the policy does not satisfy the test used to analyze P and I violations: does the government have a substantial reason for treating nonresidents differently (are they a peculiar sour of evil) and is the degree of discrimination substantially related to the reason for the discrimination. Here MM will argue that the difference in treatment is based on the objections to a higher toll by local businesses and is, therefore, simply rooted in a desire to gain an economic advantage for residents by not forcing them to pay a $3 toll. The degree of discrimination is not related to the reason for the discrimination. Even if the reason is to make up for the fact that residents pay taxes to support the bridge, the taxes pay ½ of the cost and not 2/3 of the cost. That could justify nonresidents paying twice as much as residents, but not 3 times as much. Thus, the degree of discrimination is not justified.

   The city will respond to the P and I argument by arguing that getting the benefit of a toll discount is not a right fundamental to interstate harmony. The bridge is a governmental and not a private facility. It is not a commercial opportunity that is part of the private commercial marketplace that is the focus of rights protected by the P and I Clause. Since the Clause distinguishes between government employment (which it doesn’t protect) and private employment (which it does), the city will argue it is not the kind of right protected by the Clause. In addition the higher toll does not prevent a nonresident from engaging in economic activity in the city and does not prevent a nonresident from traveling to or through the city. It simply makes it somewhat more expensive to do so.

   Even if nonresidents are being deprived of a right which is fundamental to interstate harmony, the difference in treatment is justified by substantial reasons: residents bear the burden of the bridge being located in their city in terms of noise, traffic and pollution, use the bridge more frequently, and pay for much of the cost of operating the bridge through tax payments. The degree of discrimination is substantially related to these justifications. Nonresidents can use the bridge, they just must pay more to do so which is justified by tax payments by residents and other burdens they bear.

   The second argument that MM can make is that the policy violates the dormant Commerce Clause (DCC). The policy discriminates against interstate commerce by charging nonresidents a higher toll. The test for discriminatory laws is that the state must prove that there are no available nondiscriminatory or less discriminatory means. MM will argue that alternatives exist. The city could charge only $2 for nonresidents or could have a volume discount not a discount based on residency. This would give nonresidents a benefit if they crossed the bridge frequently. MM can also argue that the real reason for the discount policy is economic protectionism. The policy was motivated by testimony from local businesses that the toll would be economically burdensome to them. The policy was designed to make sure that local businesses are relieved of a burden imposed on businesses from outside the city. This is an illegitimate purpose under the dormant commerce clause and should cause the city to fail the test utilized when a law discriminates against interstate commerce.

   The city would argue by contrast that the law, even though discriminatory, does not violate the DCC. First, the city’s purpose is the legitimate one of equalizing the cost of the toll on residents and nonresidents to take account of the fact that residents already pay taxes to operate the bridge and bear other burdens as well. While local businesses testified, there is no evidence that was the main reason for the resident discount policy. In addition, no less restrictive alternatives exist. The discount policy has been structured to take account of the actual costs of operating the bridge and allocate those costs fairly as between residents and nonresidents. While a volume discount is another way to create a discount policy, such a policy would not take in to account resident tax payments. Since requiring everyone who uses the bridge to pay their fair share is a primary goal, a volume discount would not accomplish this.

   Since the law is facially discriminatory, it is not likely a court would apply the balancing test that applies to statutes that burden, but don’t discriminate against interstate commerce. However if a court did apply Pike balancing, MM would argue that the burdens on interstate commerce outweigh the local benefits. The financial burdens on all users of the bridge who engage in interstate commerce are significant. Moreover, even if the individual burden on MM is not significant in absolute dollar terms, it is in percentage terms since the costs of using the bridge are tripled. The benefits to the city, by contrast are purely financial and not related to health or safety and thus do not outweigh the burdens. The city will attempt to refute this argument by arguing that the burdens of the law, the fairly modest additional costs to nonresident users of the bridge, are outweighed by the local benefits of fairly assessing the costs of operating the bridge between residents and nonresidents and keeping the bridge operational by fully funding its operation which is not fully funded by the money received from the city.

   The city would defend against the DCC based on the market participant exception (MPE). The city would argue that the city is participating in the market of operating a bridge and not regulating private participants in that market. Moreover, the toll policy is related directly to the market it participates in and not some other market, a downstream activity, such as linking the discount to shopping at local stores. As a MPE, the city is allowed to discriminate against interstate commerce and even engage in economic protectionism.

   MM would respond to the MPE argument by arguing that the city is not entitled to the exception because it has a monopoly on bridge operations in the city and setting tolls for those bridges since it operates all 3 bridges within the city. Therefore the policy has the practical effect of regulating the entire market of bridges and the tolls they charge since it is the only participant in the market. Because the city monopolizes the market it is not entitled to the MPE.

   MM would also claim that the discount policy also violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates between residents and nonresidents. If the class is suspect (or semisuspect) because there is a history of discrimination against nonresidents, they are politically powerless because they can’t vote in the city, and the trait is unrelated to ability, MM will argue that the city can’t satisfy either strict or intermediate scrutiny. The city’s justification is purely to achieve a financial benefit and this is not a compelling or an important justification and the means are not narrowly tailored because alternatives exist such as a higher toll for everyone or a volume discount for frequent users of the bridge.

   The city will respond by arguing that nonresidents are not a suspect (or semisuspect) class because the trait is not unalterable since nonresidents can move, and the trait is not used to label nonresidents as inferior since there is no negative connotation to living outside the city. As a nonsuspect class, the city will only need to show that it has a legitimate reason for the use of the classification (to pay the operating costs of the bridge) and that the use of the classification is rationally related to that interest (to equalize costs since nonresidents don’t pay taxes).

   MM can also try and argue that the toll policy violates the Fourteenth Amendment Due Process Clause. MM will try to argue that the policy interferes with the fundamental right to travel across state lines and as a fundamental right it should be analyzed under strict scrutiny and the city does not have a compelling reason for the toll policy (just to defray costs) and the means are not the least restrictive policy since alternatives exist (volume discount or some fee for all bridge users or $2 for nonresidents to equalize costs in light of tax payments).

   The city will respond that even if the right to travel is a fundamental right, the policy does not prevent travel across state lines it only makes it more expensive. Therefore the higher toll does not impose an undue burden on the right to travel and should only be analyzed under minimum scrutiny review which it will satisfy since providing sufficient funds to operate the bridge is a legitimate reason for the toll policy and the policy is rationally related to that objective since it equalizes costs in light of tax payments and other burdens on residents.

   The federal government is challenging the bridge discount on the ground that is preempted by BRATA. The first issue in this challenge is whether BRATA is a valid federal law. The federal gov’t will argue that BRATA is justified by the commerce power since the statute, which regulates access to roads and bridges that are used for interstate transportation, directly regulates the channels of interstate commerce and falls within the first Lopez category where Congress’s power is plenary. As a valid federal law, the law can preempt state laws. While BRATA contains no express preemptive language, the federal gov’t will argue that the city policy is in conflict with the federal law. First, it is in conflict because it is impossible to comply with both the city toll policy and the federal statute at the same time since the discriminatory toll requires exactly what the federal law prohibits: “discriminating against nonresidents in granting access to roads and bridges.” In addition, the policy also conflicts with the purpose of the federal law. The purpose of the federal law is to eliminate discrimination in access to roads and bridges that facilitate interstate movement. The toll undermines this purpose because it makes it more expensive for nonresidents to cross the bridge than residents and therefore burdens their access to interstate roads and bridges. While the original purpose of the law may have been to outlaw racial discrimination, the law, like the Equal Protection guarantee, is written in general language and its clear meaning is to outlaw all forms of discrimination including discrimination based on residency. Finally, the federal gov’t will argue that the federal law fully occupies the field. The federal statute is intended to supersede state policies that burden interstate travel by nonresidents in a discriminatory manner and is not intended to allow such laws to coexist with the federal policy. This is made clear by the fact it was specifically enacted to combat such state statutes.

   The city will argue that BRATA is not a valid federal law. It is not valid because it violates state autonomy as codified in the 10th Amendment. The statute forces the city to adopt a toll policy against its will thereby forcing the city to enact a law in violation of the city’s autonomy as in New York v. United States. In the alternative, it can be viewed as forcing the city to enforce a federal regulatory policy as in Printz by adopting and enforcing the regulatory scheme required by BRATA.

   The federal gov’t will argue that BRATA does not violate state autonomy. BRATA does not force the city to regulate private behavior since a toll is not a regulation. Since BRATA only requires a change in the city’s own behavior, it is more like the law in Reno v. Condon.

   If the court decides the federal law is valid, the city will argue it is not preempted. The statute contains no express preemptive language. It is not impossible to comply with both since the federal statute only prohibits access to tolls and bridges and the higher toll is not a denial of access. In addition, the purpose of the federal law is to prohibit racial discrimination and the city policy only discriminates based on residency and does not discriminate based on race. Therefore, the state law does not undermine the federal purpose. Finally, the federal statute does not fully occupy the field of resident road and bridge discounts. The federal law was only intended to outlaw racial discrimination in interstate travel and to fully occupy the field of racial discrimination in interstate travel. The federal law was not intended to fully occupy the field of toll discounts based on residency. The state law does not discriminate on the basis of race and so it is not related to the field the federal government intends to fully occupy. In addition, the federal law does not define access to include setting tolls and is not intended to occupy the field of toll discounts. Since selecting the amount of a toll for a local bridge or road is an activity traditionally regulated by states and localities, the court should not interpret the statute broadly to preclude giving a city resident a resident discount on bridge tolls.

Question II

   DD and EE can each argue that they have been denied a fundamental right under the Due Process Clause of the Fifth Amendment. This right falls within the zone of privacy recognized in Griswold. The right to privacy in intimate sexual activity is protected by history and tradition. This law intrudes on the sexual privacy of both individuals and married and unmarried couples. Therefore the fear of governmental intrusion into the marital bedroom the Court identified as at stake in Griswold is also intruded upon under the FBSD. In addition, the right is protected based on analogies to other cases including Eisenstadt and Roe which all involve sexual privacy. The latter two cases extend protection to unmarried couples. More recently Lawrence also recognized a right to sexual privacy beyond traditionally recognized relationships. Finally, the right to use sexual devices as part of private sexual activity is fundamental to personal identity just as is the case with other choices of sexual activity including whether to use contraception or not. The right at stake is the right to experience sexual pleasure and this experience is central to personal identity. While DD’s interest is in the sale of sexual devices, she should still be allowed to assert the interests of her customers as the doctor asserted the interests of her patients to use contraceptives in Griswold. Even if DD is not an appropriate challenger to raise a fundamental right, EE certainly is since her interest is in personal use of sexual devices.

   As a fundamental right, the challengers will argue that the law should be subject to strict scrutiny review. The government (gov’t) does not have a compelling governmental interest to justify the ban. It is based on a morality justification that is not compelling. Even if the ban is viewed as justified by health reasons, there are less restrictive alternatives available. First, the gov’t could ban the use of phthalates rather than banning sexual devices whether or not they are made with phthalates. In addition, the gov’t could promote safe sex practices in the use of sexual devices just as it does in the case of other sexually transmitted diseases rather than banning the devices in their entirety. If the devices are properly cleaned before use they do not present any health hazards so the gov’t should promote washing the devices rather than enacting a ban. The undue burden test is not relevant in this analysis because the federal gov’t has enacted a ban on the use of such devices and not a more minor intrusion. Moreover, the term sexual devices is broadly defined to outlaw all such devices, adding to the nature of the burden.

   In the alternative, even if the ban on sexual devices is viewed as an intrusion on a nonfundamental right, DD and EE can argue that the ban does not satisfy the minimum scrutiny test because the ban is not rationally related to a legitimate governmental objective. The ban is designed to impose a moral judgment based on an unproven assumption that the use of sexual devices promotes loose morals. The court should view this as an illegitimate justification.

   The gov’t in response will argue that no fundamental right is intruded upon. First, while EE can raise a personal right, DD’s interest is not in the use of sexual devices, but only profits from their sale. Therefore, her due process claim is interference with her economic interests. This is a nonfundamental right. Moreover, even as to EE’s personal right claim, the right to use sexual devices is not protected by history and tradition. Such devices are of relatively recent origin as a general matter and no tradition of protecting the use of such devices exists. In addition, no cases support considering the use of such devices to be fundamental. Such devices are not related to procreation as was the case in Griswold, Roe, and Casey. Moreover, they are not related to the right in Lawrence where the key aspect of the right was sexual intimacy with another person and protecting the intimate relationship that existed between the couple. Depriving someone of the ability to use sexual devices does not deprive a person of the right to engage in an intimate sexual relationship with a person of the same or opposite sex. Moreover, the right at issue is not central to personal identity. The use of sexual devices does not define who you are in same way as your sexual orientation or whether or not you bear a child.

   As a nonfundamental right, the gov’t must only demonstrate that the ban is rationally related to a legitimate governmental interest. The gov’t has asserted several health concerns as among its reasons for enacting the ban. These are legitimate gov’t interests and the ban on such devices will reduce health risks such as by reducing the spread of sexually transmitted infections spread by the use of such devices. Therefore, the law is a rational means to a legitimate end.

    In the alternative, the gov’t will argue that even if the right is fundamental, that the gov’t can satisfy the strict scrutiny test. The government will argue that the concern with health is a compelling interest and that the ban is a least restrictive means to accomplish this objective since the devices cause both health hazards from phthalates and from sexually transmitted infections.

    The undue burden test is not useful in this situation to either party. The ban is an absolute ban on the use of such devices. Therefore, if the right to use sexual devices is a fundamental right, the law imposes an undue burden on the right and strict scrutiny is the appropriate test.

    EE will also argue that the federal law exceeds the congressional power to regulate interstate commerce. EE will argue that the activity regulated is a noneconomic activity because the ban outlaws not only the sale and distribution of the devices, but also their possession. EE’s claim is solely based on interference with her possession of the devices. Possession of a sexual device is just like possession of a gun in Lopez. Since the activity was considered to be noneconomic in that case it should also be considered noneconomic here.

    If the court agrees that the right is noneconomic, EE will argue that the gov’t cannot satisfy the Lopez test. First, while there is a jurisdictional element because the statute applies to the sale, distribution, and possession of sexual devices only if they affect interstate commerce, the element does not serve to restrict the reach of the statute in any significant way. For example, because affecting commerce is broadly defined, it applies if someone who possesses a sexual device travels in interstate commerce with the device even if the device is not used during the interstate travel and even if the interstate travel is unrelated to commercial activity involving the device. In addition, any device that was manufactured using ingredients that have traveled in interstate commerce or was shipped in interstate commerce at some point in the past prior to sale, distribution or possession falls within the reach of the statute no matter how much time has lapsed between the interstate travel and the sale, distribution, or possession by the defendant.
This likely means that all cases involving possession of such devices can be reached by the statute since virtually all such cases will involve one of these situations. Therefore, the jurisdictional element does not serve to limit the reach of the statute.

    Second, EE will argue that while there were Congressional hearings before passage of the FBSD, those hearings did not consider the connection between the possession of the device and interstate commerce, they only showed the negative health and morality effects of sexual devices. Third, the connection between the possession of sexual devices and interstate commerce is attenuated. The devices can cause adverse health effects which are linked to an increase in the costs of health care which are linked to creating a drag on the economy. This is like the costs of crime argument that the Court rejected in Lopez as relying on too attenuated a link to interstate commerce. Therefore, EE will argue that the ban fails the Lopez test. Even if the ban on sale and distribution is economic in nature, the statute should be struck down in its entirety because it also applies to the noneconomic activity of possession.

    By contrast, the federal gov’t will argue that the statute falls within the scope of Congress’s power to regulate interstate commerce. The gov’t will argue that the FBSD is a comprehensive regulatory scheme like the statute in Gonzalez v. Raich and in its entirety it regulates economic activity. That is because it regulates the sale, distribution, and possession of sexual devices and possession is just one part of a chain of activities that involve the sale and distribution of a product in interstate commerce and that product is part of a significant national and international market for sexual devices. As an economic activity, the court must only decide that Congress could have rationally concluded that the regulated activity in its entirety has a significant economic effect on interstate commerce. Since the regulated activity is a large and growing commercial enterprise, Congress could easily conclude that the enterprise (the sale of sexual devices) has an economic effect on interstate commerce like the wheat regulated in Wickard.

    If the court concludes that possession should be considered as a separate activity and that activity is noneconomic, the federal gov’t will argue that the activity satisfies the Lopez elements. First, the statute contains jurisdictional elements. No prosecutions can occur without showing a connection to interstate commerce. Moreover, the link between possession of sexual devices while traveling in interstate commerce and an effect on interstate commerce is direct and not attenuated and does not rely on aggregate effects, but requires a direct link to interstate commerce in each individual case. Finally, the area regulated, that of sexual activity, is an area that has traditionally been regulated by the states and not the federal government.

    In the alternative, the gov’t will argue that the Necessary and Proper Clause together will the Commerce Clause provides the basis for the FBSD. In this analysis, used by Justice Scalia in Raich, regulating possession of sexual devices is a means adapted to the end of regulating the sale and distribution of such devices in interstate commerce.

Question III

    The classification at issue is different treatment of openly homosexual male inmates and inmates perceived as homosexual vs. male inmates who are neither openly homosexual nor perceived as homosexual. The State of Stone can argue that this classification is not based on sexual orientation because it also includes those perceived as homosexual. Therefore, each group likely includes both homosexuals and non-homosexuals since there are some homosexuals who are neither openly homosexual nor perceived as homosexual and some men perceived as homosexuals who are not. Using this reasoning, the classification is not based on sexual orientation. As a nonsuspect class, the appropriate standard of review is minimum scrutiny. The question is whether the prison policy employs a classification that is rationally related to a legitimate state interest. Here the security of prisoners is at risk based on evidence of violence directed at both openly homosexual inmates and inmates perceived as homosexual. Therefore, the prison policy of providing different cell arrangements for such prisoners to protect their safety is rationally related to the legitimate interest of safety of inmates.

    Even if the classification is viewed as based on sexual orientation, the state will argue that this classification should not be considered either a suspect or semi-suspect classification. The criteria used by the Court to identify such classes are (1) whether the group singled out has suffered from a history of discrimination;(2) whether the trait shared by the group is an unalterable characteristic; (3) whether the trait generally bear no relationship to a person's ability to contribute to society; (4) whether the trait is often singled out to reinforce prejudice against the group or label the group as inferior; and (5) whether the group politically powerless by its numbers in the population, by under-representation in government, or by its inability to influence the legislative agenda. The state will argue that homosexuals are not politically powerless because they have been able to influence the legislative agenda such as by legalizing same sex marriage in a number of states. The state will also argue that the class is not a discrete class similar to Cleborne which dealt with the mentally retarded since there are a range of sexual orientations and not only two discrete categories and the range includes bisexuals, sexual experimenters, and others who may engage in homosexual as well as heterosexual behavior.

    Even if the court considers the class to be suspect (or semisuspect), the state will argue that the government can satisfy both intermediate and strict scrutiny review. It will argue that the state has a compelling justification in protecting homosexual prisoners who have been the victims of abuse. There is strong evidence to support the fact that such prisoners have been the victims of violence by other inmates. The means employed are narrowly tailored to achieve this interest. First, the policy is only applicable to Parkdale Prison and is not applied throughout the state prison system based on the level of violence against homosexuals. Second, only openly homosexual prisoners are required to be segregated and only in their cell assignments in the Induction Center. Prisoners perceived as homosexual have the option to choose a segregated cell assignment but need not do so. After leaving the IC, prisoners can choose their cellmates and most do. Openly homosexual prisoners who do not choose a cellmate are offered the option of being housed with another homosexual prisoner, but are not required to accept such an assignment. This system mandates cell segregation in only very limited circumstances. In addition, the prison has tried other means to protect homosexual prisoners including additional security cameras and guards and tolerance training and none of these methods have been successful. The prison has more than fulfilled its obligation to consider means that do not discriminate and can demonstrate that they do not work based on actual experience not just speculation. In addition, the prison can demonstrate that the means they employ are extremely successful and reduce violence against homosexual prisoners by 40 percent in the IC and 30 percent in the general prison population. That level of success should suggest that the means are both necessary and narrowly tailored.

    LL will attempt to refute all of these arguments. He will argue first that the classification scheme involves discrimination based on sexual orientation since openly homosexual prisoners as well as prisoners perceived as homosexual are discriminated against. Thus it is the trait of homosexuality that singles them out. Since homosexuality can only be identified by self-identification, by identification by others, and by conduct, the prison is identifying homosexuals in the only ways possible in the prison setting and discriminating against prisoners on that basis. The class of homosexuals should be treated as a suspect (or semisuspect class) using the criteria identified by the Supreme Court. Homosexuals have suffered from a long and continuing history of discrimination. Recent state constitutional amendments (as in Romer) banning same sex marriage, state statutes banning same sex marriage, the Federal Defense of Marriage Act, and other recent laws preventing adoption by homosexuals are evidence of this fact. The trait is one over which people have no control since most scientists believe that sexual orientation is the result of biology similar to gender and is not a lifestyle choice. Traits based on sexual orientation bear no relationship to a person's ability to contribute to society since they are not related to ability in any way. There is no category of activity that homosexuals are unable to engage in, whether military service, athletic performance, intellectual achievement, artistic ability or anything else. The trait is typically singled out to reinforce prejudice against the group as can be seen in Romer and Lawrence. The group is politically powerless by its numbers in the population and by under-representation in government since there are very few openly homosexual legislators in the state or federal government.

    If the court finds that sexual orientation is a suspect (or semisuspect classification), LL will argue that the state cannot satisfy the burden of proof imposed under the relevant standards of review. While safety of prisoners is a compelling end, the means employed are not shown to be the only means available to achieve this objective. While the prison asserts that other means have not been successful, they have not indicated why that is the case. If security cameras are installed and monitored, why is violence continuing to occur? Perhaps additional training of prison guards is necessary, perhaps the location of the cameras is not correctly chosen. Segregation must be a means of last resort, as seen in Johnson v. California, and the prison has not met its burden of showing it is a necessary means. In fact, the dramatic reduction in violence after segregation suggests that homosexual prisoners are being assaulted by their cellmates. This fact suggests the prison must try and increase security in the cells. It is not clear that its prior efforts were directed at cell security rather than elsewhere in the prison. The absence of proof on this issue means that the classification chosen is not narrowly tailored. Even if some segregation is necessary, it may be that not all homosexual prisoners should be chosen for this treatment. Perhaps the prison can identify other traits that are likely to lead to violence such as physical weakness. It could then reduce the level of discrimination and limit it to a subcategory of homosexual prisoners.

    Even if the class of homosexuals is nonsuspect, LL can still argue the prison policy does not satisfy minimum scrutiny review. It can argue that the segregation is not based on a legitimate interest and that security is only a smokescreen for a desire to harm a politically unpopular group.