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.