Sample Exam Question - Review Question 3 - Commerce Clause and State Autonomy Issues (from Spring 2007 Exam - Question III)

The suggested time to answer this question is 60 minutes.

The federal government has become increasingly concerned that genetic testing is being used by employers to discriminate against those whose tests reveal genetic predispositions to certain conditions. In order to outlaw this form of discrimination, Congress enacted the Genetic Discrimination in Employment Act of 2007 (GDEA). Under the terms of GDEA, employers may not consider the results of genetic testing in making employment decisions.

Under GDEA, an employer is required to comply with its provisions if the employer “employs 5 or more employees.” The nature of the employer’s business is not taken into account in determining whether an employer is covered by the Act. In addition, states and their subdivisions also qualify as employers under the provisions of GDEA and are subject to its restrictions. Moreover, states must report to the federal government any credible information they receive that GDEA has been violated.

Before enacting GDEA, Congress heard testimony from individuals who were discriminated against in employment because of the results of genetic testing. For example, several women testified that they had been refused a promotion because genetic testing disclosed an enhanced susceptibility for breast cancer and their employers were unwilling to promote them because of fear they might become ill. Congress also heard from individuals who were refused employment because they carried the gene for Huntington’s Disease, a degenerative disorder of the central nervous system.

Representatives from a variety of state agencies also testified. They argued that they should be permitted to take the results of genetic testing into account in choosing who to employ. For example, the head of a special undercover law enforcement task force testified that his task force had refused to employ persons with a genetic marker for a rare condition that reduces a person’s inhibitions. The employment of such persons, the task force head argued, would present a security risk to the safety of undercover operatives. In their testimony, state officials also objected to the reporting requirements of GDEA.

Shortly after the enactment of GDEA, it was challenged by a coalition of states and private employers who are subject to its provisions. The states argue that the law violates their state autonomy rights under the Tenth Amendment and the private employers argue that the law exceeds the power of Congress under the Commerce Clause to regulate the employment relationship.

You are a law clerk to the judge assigned to the case. The judge asks you to analyze the Tenth Amendment (state autonomy) and Commerce Clause arguments that can be made to challenge the constitutionality of GDEA as well as the arguments that the federal government can make in defending the constitutionality of GDEA on Tenth Amendment and Commerce Clause grounds.