Sample Exam Questions Covering: Commerce Clause, Spending Power, State Autonomy (Tenth Amendment), Dormant Commerce Clause, Privileges and Immunities Clause of Article IV, and Preemption

Sample Exam Question One - Commerce Clause Issue (NOTE: This is not the same question that is answered as part of the 2004 Model Answer. That question does not limit your reply to a single issue, but asks you to discuss all relevant constitutional issues.)

The members of Congress have become alarmed at the increasing popularity of cosmetic surgery in the United States. Over the last five years, there has been a 400 percent increase in the number of cosmetic surgery procedures performed in the United States. While some of these involve relatively minor treatments, others involve major amounts of expensive reconstruction of the face and body. Congress has concluded that this trend has been fueled by the fact that we are increasingly a society that worships youth and youthful appearance, by the popularity of television shows such as Extreme Makeover and by the aging of the baby boom generation. However, among the more surprising trends identified by Congress is the fact that the percentage increase in cosmetic surgery is just as high among people between 20 and 30 as it is among those who are over 50.

The boom in cosmetic surgery procedures has been an enormous economic benefit to the cosmetic surgery industry. This includes physicians, hospitals, day clinics where many minor procedures are performed, drug companies, makers of devices such as implants, to name some. In its investigation, Congress learned that cosmetic surgery is a relatively unregulated part of the health care industry. There is no special certification for physicians in cosmetic surgery. Therefore, physicians who have been certified in any field, no matter how unrelated to cosmetic surgery, can perform cosmetic surgery procedures. Moreover, there are no waiting periods or any other checks on the decision to completely change one’s appearance through surgical procedures.

In order to deal with some of the excesses that have occurred, Congress enacted the Federal Cosmetic Surgery Protection Act (FCSPA). The Secretary of the Department of Health and Human Services (HHS) is charged with the enforcement of FCSPA. Under the statute, a person is not permitted to undergo a major cosmetic surgery procedure, except where necessary for the physical health of the person or to correct a major physical abnormality that interferes with normal appearance, unless approved by a Cosmetic Surgery Approval (CSA) Panel created at each facility licensed to perform cosmetic surgery. The statute does not apply to minor procedures that can be performed in a physician’s office such as Botox injections.

The CSA Panel shall consist of 3 physicians and a patient advocate. Three of the four Panel members must vote to approve a cosmetic surgery request for it to proceed. Patients whose requests are denied may ask for reconsideration of the decision and, if unsuccessful, may seek judicial review.

Adam Audrey is a 25 year old man from Gary, Indiana who wishes to undergo extensive plastic surgery to change his appearance. He is seeking a nose job, chin and cheek implants, and an eye lift. Since childhood Mr. Audrey has been unhappy with his looks and was often ridiculed by other children because of his appearance. Mr. Audrey hopes the cosmetic surgery will help him to more fully enjoy life because he will no longer be uncomfortable with social interactions.

Mr. Audrey consulted with a reputable cosmetic surgeon in Chicago, Illinois. The surgeon agreed to perform the procedures he requested. As required, the surgeon submitted Mr. Audrey’s request to the CSA Panel at the Chicago medical facility where the surgery was to be performed. After reviewing his case, the Panel rejected Mr. Audrey’s request on the ground that the planned surgery was extensive and unnecessary for someone of Mr. Audrey’s appearance, which the Panel considered to be within the range of average for men of his age.

Mr. Audrey is very upset that his request to proceed with cosmetic surgery was denied. He believes that a decision to have the surgery is one he should be permitted to make free of federal government involvement. After consulting a lawyer, he filed suit against the Secretary of HHS to challenge the constitutionality of the Federal Cosmetic Surgery Protection Act. Mr. Audrey is arguing that the federal government lacks power under the Commerce Clause to enact the Federal Cosmetic Surgery Protection Act (FCSPA).

You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the Commerce Clause arguments that can be made by Adam Audrey in challenging the constitutionality of FCSPA as well as the Commerce Clause arguments that can be made by the Secretary of HHS in defending the constitutionality of the statute.

Sample Exam Question Two - Preemption and Dormant Commerce Clause Issues (from Fall 2005 Exam - Question I)
(Suggested time: 60 minutes) (50 out of 150 total exam points)

Seafood World, Inc. (SW), is a corporation with its headquarters in Alabama. It imports seafood and sells its imported seafood to restaurants and specialty fish markets throughout the United States. One of its most popular products is a catfish grown in China. Approximately 40 percent of SW’s Chinese-grown catfish are sold to restaurants in Louisiana, mainly in Baton Rouge, 40 percent are sold to restaurants in other states and 20 percent are sold to speciality fish markets. None of the specialty fish markets are located in Louisiana. SW’s labels designate the package contents as “catfish.” The phrase “Cajun Boy” is written in large lettering to the left of “catfish.” The phrase “Product of China” is located immediately below SW’s Alabama address. According to SW, Chinese-grown catfish are members of the family Ictaluridae and are biologically identical to domestic catfish that belong to that same family. SW asserts that its Chinese-grown catfish are direct descendants of Alabama catfish.

SW’s principal competitors are catfish farms located in Alabama, Arkansas, Louisiana and Mississippi. Raising catfish in the controlled environment of catfish farms became popular in the United States after U.S. catfish waters became overfished and the catfish supply became seriously depleted. Farm-raised catfish now account for 95 percent of the U.S. catfish supply. The costs of raising catfish on catfish farms exceeds the costs of SW’s imported variety of catfish. The U.S. catfish industry has unsuccessfully lobbied the federal government to ban the importation of catfish or at least impose an import tariff on imported catfish that would bring the price of imported catfish in line with U.S. catfish. Louisiana catfish farmers played a leading role in that failed effort.

Fifteen months ago, SW received notification from the Louisiana Department of Agriculture (LDA) that its catfish labels violated the Louisiana Food Misrepresentation Law (LFML), a law designed to protect consumers. The law provides as follows:

No one shall misrepresent the name, or type of any fruit, vegetable, grain, meat, or fish, including catfish, sold or offered or exposed for sale, to any actual or prospective customer.

Various subsections of the law identify particular instances of misrepresentation including subsection (e):

(e) “Catfish” shall mean only those species within the family Ictaluridae that are grown in the United States of America.

In response to the LDA notification, SW informed the LDA that it believed its catfish labels were accurate and that they fully complied with federal labeling requirements that prohibit misbranding. Under the section of the Federal Food, Drug, and Cosmetic Act that regulates catfish: “A food shall be deemed to be misbranded ... if it purports to be or is represented as catfish, unless it is fish classified within the family Ictaluridae,” 21 U.S.C. § 343(t). SW argued, and the LDA does not dispute, that since all the catfish SW sells in Louisiana are members of the family Ictaluridae, they are not misbranded under federal law. Moreover, SW argued that its product labels include the phrase “Product of China,” thereby making clear they are not domestic catfish.

Despite SW’s arguments, the LDA informed SW that state law requires its catfish to be re-labeled so as to comply with the LFML. The LDA told SW that labeling its product as “Chinese Catfish” or “Imported Catfish” would satisfy state law. Since the purpose of the statute is to avoid giving food purchasers an inaccurate impression of the food product they are buying, these changes would avoid inaccuracy. The LDA asserted that the typical purchaser of catfish assumes that catfish is a product of the United States, particularly grown in Louisiana, Mississippi, Arkansas and Alabama. Therefore, the product name of imported catfish must make clear that it does not originate in the United States in order to avoid misrepresenting the nature of the catfish. It further argued that it was free to impose additional labeling requirements on catfish because the Federal Food, Drug and Cosmetics Act provides that “States may impose additional labeling requirements on products regulated by this Act so long as those requirements would not contribute to consumer confusion. States are not free to prohibit labeling information required by this Act.” In light of these facts, the LDA ordered SW to immediately cease selling its catfish in Louisiana with its current label.

One year ago, SW filed a lawsuit challenging the constitutionality of the LFML. In its suit, SW argues both that the Louisiana catfish labeling requirement is preempted by the Federal Food, Drug, and Cosmetic Act and that it violates the Dormant Commerce Clause. In order to continue selling catfish in Louisiana during the pendency of its lawsuit, it altered the label it used on all of the catfish sold in Louisiana so that the label reads “Imported Catfish.” Thus far, the need to separately label catfish destined for Louisiana has added $250,000 to SW’s production costs and its catfish sales had dropped by 25 percent even prior to Hurricanes Katrina and Rita.

You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the preemption and Dormant Commerce Clause arguments available to Seafood World in challenging the Louisiana Food Misrepresentation Law as well as the arguments available to the LDA in defending the LFML against those constitutional challenges.

Sample Exam Question Three - Commerce Clause and State Autonomy (Tenth Amendment) Issues (from Spring 2007 Exam - Question III)
(Suggested time: 60 minutes) (50 out of 150 total exam points)

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.

Sample Exam Question Four (from Spring 2009 - Question I)
(Suggested time: 60 minutes) (48 out of 144 total exam points)

In 2008, the City of Springdale passed an ordinance that regulates tow trucks. The Springdale City Council held hearings before the ordinance was enacted. The presidents of several local towing businesses testified that a growing number of tow trucks, many from outside Springdale, were monitoring Springdale police radio transmissions and “racing” each other to be the first to reach the scene of a car accident. A month before the ordinance was enacted, two tow trucks operated by towing businesses located outside of Springdale collided and killed a driver whose car had been in an accident in Springdale and needed to be towed. Springdale is located in the western part of Massachusetts near the border that separates Massachusetts from Connecticut.

The ordinance makes it unlawful to “engage in towing in the City of Springdale without having first obtained a license from the Springdale Tow Truck Licensing Authority.” The ordinance defines “towing” to include not only the towing of a vehicle, but any “driving or other operation of a tow truck, or the offering to transport a vehicle by means of a tow truck.” Thus, the ordinance requires that all tow trucks within the City limits must be licensed by the City. This is true regardless of whether the truck has a vehicle in tow and regardless of whether the truck is actively soliciting business in the City or simply passing through, such as towing a car from one location outside the City to another location outside the City.

In order to obtain a tow truck license from the Licensing Authority, a towing business, wherever located, must pay annual fees of $ 600 per truck and $ 20 per driver. As part of the licensing process, tow trucks must undergo a vehicle inspection and drivers must submit to a criminal record check. Further, applicants must furnish proof of adequate liability insurance. Because the licensing process often takes up to six months, single-tow emergency licenses can be issued by any police officer after a brief vehicle inspection for a fee of $50. No towing business can receive more than four single-tow emergency licenses within any one calendar year.

Before enacting the ordinance, the Springdale City Council consulted with the City Attorney to see if a local towing ordinance would violate federal law. The City Attorney informed the City Council that a provision of the Interstate Commerce Act prevents states and local governments from enacting laws “related to the price, route, or service of any motor carrier with respect to the transportation of property.” While this federal law applies to towing, a form of transportation of property, it contains an exception which provides that the provision “shall not restrict the regulatory authority of a State with respect to the safety of motor vehicles.” The United States Supreme Court has interpreted this exception to only apply to local regulations “genuinely responsive to safety concerns.” The City Attorney offered his opinion that this exception might apply to the Springdale towing ordinance. After hearing this legal advice, the City Counsel went ahead and enacted the ordinance.

Tony Tower (TT) resides in Connecticut. TT operates a towing business in Connecticut, but is sometimes called to tow cars located in Springdale and on occasion transports a vehicle through Springdale on his way to locations in other states. He has filed a lawsuit challenging the constitutionality of the Springdale towing ordinance.

You are a law clerk for the judge assigned to the case. The judge has asked you to write an analysis of the constitutional arguments that Tony Tower can make in challenging the constitutionality of the Springdale towing ordinance as well as the arguments that the City of Springdale can make in defense of the constitutionality of the ordinance.

Sample Exam Question Five (from Spring 1993 Exam - Question I)
(Suggested time: 60 minutes) (40 out of 120 total exam points)

The State of Connecticut recently enacted the Small Parts Labeling Law. The law requires that toy manufacturers place conspicuous warning labels on toys designed for children between the ages of three and seven that pose a danger to children under the age of three of choking, aspiration or ingestion because of small parts. The law forbids the sale of any such toy in the State of Connecticut that does not include a required warning label.

When the law was first proposed, Connecticut held hearings on the law. It heard testimony from medical experts who testified that choking on small parts is one of the leading causes of toy-related death for children under age three. It also heard testimony from the President of Safe Toys, Inc., the only manufacturer of toys for children between the ages of three and seven located in Connecticut. Safe Toys was a major supporter of the law, arguing that the safety of children should always be a priority for the government. Under questioning, the President of Safe Toys made clear that the new law would have no adverse effect on Safe Toys, Inc. because few of its toys contained any dangerous small parts and the few that did already contained explicit warning labels.

Before enacting the Small Parts Labeling Law, Connecticut considered the provisions of the Federal Toy Safety Act of 1980. Under this Act, toys may not be shipped in interstate commerce if they are intended for use by children under three years of age and they present (1) an electrical, mechanical or thermal hazard to such children or (2) a risk of choking, aspiration or ingestion because of small parts. In addition, warning labels are required on toys that are intended for children between the ages of three and seven if those toys pose an electrical, mechanical or thermal hazard to children under age three. In 1983, Congress considered an amendment to the Toy Safety Act that would have extended the warning label requirement to toys intended for children between the ages of three and seven if those toys pose a risk of choking, aspiration or ingestion because of small parts to children under age three. The amendment was defeated.

Children's Toys, Inc., an Ohio corporation, is a major manufacturer of toys for children between the ages of three and seven. Its most profitable line of toys are sets of plastic blocks that can be linked together. Many of the individual parts in the sets would pose a small parts hazard to children under the age of three. However, all of the toys manufactured by Children's Toys carry labels informing purchasers that the toys are designed for children between the ages of three and seven and are, therefore, in compliance with the Federal Toy Safety Act.

Children's Toys has filed a lawsuit challenging the constitutionality of the Connecticut Small Parts Labeling Law. Children's Toys argues that it is in compliance with the Federal Toy Safety Act and that the State of Connecticut's effort to impose a labeling requirement on it is unconstitutional. In addition, it argues that since Children's Toys sells its products nationwide, the Connecticut Law imposes a burden on its interstate activities. Moreover, Children's Toys claims that the Connecticut law was designed to benefit one of its chief competitors, Safe Toys, Inc.

The State of Connecticut defends its Small Parts Labeling Law, in part, by arguing that, despite the federal ban on unsafe toys intended for use by children under three years of age, choking on small parts continues to be one of the main causes of toy-related death for young children. Therefore, it argues, a warning label requirement is necessary because parents often interpret an age label on a toy (that states, for example, "3-up") as no more than a suggestion regarding the developmental level of the user without recognizing that the toy may contain dangerous small parts.

You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the constitutional arguments that can be made by Children's Toys, Inc. in claiming that the Small Parts Labeling Law is unconstitutional as well as the arguments that can be made by the State of Connecticut in defense of the law.

Sample Exam Question Six - Privileges and Immunity Clause Issue (from Fall 2005 Exam - Question III)
(Suggested time: 30 minutes) (25 out of 150 total exam points)

The Springdale Secondary is a 6.5-mile stretch of railroad track that extends from Barrington, Massachusetts to Hudson, Massachusetts. The railroad property includes the railroad track and station buildings at both ends. The Barrington end of the Springdale Secondary is at an interchange with a railroad line owned by CSX Transportation, an interstate railroad carrying freight throughout the eastern United States. CSX is not currently operating any trains that travel past the Barrington interchange. The Hudson end terminates in an interchange with Norfolk Southern, another interstate railroad freight carrier. Norfolk Southern is not currently operating any trains that travel past the Hudson interchange. Like many other stretches of rail lines that once provided the major means of passenger and freight transportation for the nation, the Springdale Secondary is in a state of disuse. Without connections to any other operating rail lines at either end, the Springdale Secondary has no current value as a passenger or freight railroad.

The current owner of the Springdale Secondary is the Springdale Transit Authority for Regional Travel (START), a transit authority created and operated by the Commonwealth of Massachusetts. On December 30, 2004, START signed a lease agreement that gave the Town of Barrington the limited right to operate a rail passenger excursion and dining service over the Springdale Secondary. Barrington’s rail passenger excursion train was to travel at a speed of no faster than five miles per hour and would serve food and beverages and provide entertainment in the form of musical reviews, stand-up comedy, or murder/mystery/romance productions. Passengers would board the excursion train in Barrington, Massachusetts, have dinner as the train traveled to Hudson and back, and then disembark. The lease agreement barred the Town of Barrington from engaging in any freight or passenger services on the Springfield Secondary other than the excursion train described in the lease. Under the lease agreement, the railroad excursion train would begin and end within Massachusetts and would service passengers with purely intrastate ticketing and with no connection to interstate rail passenger or freight services.

The excursion train became operational in May, 2005. While the Town of Barrington currently subsidizes the operation of the train, it hopes that over the long term the train will become a popular activity for both tourists and local residents and will become self-supporting. Barrington charges $40 per person for its dinner excursion and $25 for its lunch excursion. To encourage passengers to try the train, the Town of Barrington provides 4 categories of discounted prices including discounts for families with two or more children, senior citizens, minor children accompanied by an adult, and year-round residents of the Town of Barrington.

A lawsuit was recently brought against the Town of Barrington by David Dowd (DD). Mr. Dowd is a resident of the State of New York who owns a summer home in the Town of Barrington. He lives in his Barrington home during July and August as well as occasional weekends during other parts of the year. He pays real estate taxes to the town. In addition, he pays fees for water and sewer service. Income from real estate taxes is the principal source of revenue collected by the Town of Barrington.

Mr. Dowd has ridden the Barrington excursion train on several occasions. Each time he requested the discount available for residents, but was informed that the discount was only available to year-round residents of Barrington and that he does not qualify since his legal residence is in New York and he only resides in Barrington part of the year, principally in the summer. DD does not dispute these facts. However, his lawsuit argues that refusing to grant him the same discount available to year-round residents violates his rights under the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the Privileges and Immunities Clause arguments available to David Dowd in challenging the residency discount as well as the Privileges and Immunities Clause arguments available to the Town of Barrington in defending its residency discount.

Sample Exam Question Seven - Commerce Clause and Spending Power Issues (from Spring 2009 Exam Question II (questions 1 and 2 out of 7 subparts))

After reviewing a series of studies undertaken by the Department of Education (DOE), academic literature, and expert testimony before congressional committees, Congress is considering enacting the Single Sex Educational Opportunity Act (SSEOA) of 2009. Under this federal law, public and private elementary and middle schools (grades K-8) in all 50 states would be required by the year 2012 to offer students in underperforming, large enrollment schools a single sex alternative. Such schools would be required to provide equal single sex educational opportunities for males and females and would not be permitted to displace classes where males and females are enrolled in the same class. Under the statute, “large enrollment schools” are defined by grade rather than by classifying the school in its entirety. Therefore, schools offering K-8 education are only required to offer a single sex alternative in any grade in which they have at least 6 classes in a grade level. In that circumstance, there would be 4 coed classes and one class for males and one for females. The statute gives schools some discretion in how to select students for enrollment in single sex classes if they are oversubscribed, but it requires that all such enrollments be voluntary and with the express permission of the parents.

SSEOA was co-sponsored by several members of the House and Senate after a number of studies demonstrated that both boys and girls, particularly those who fail to perform at or above grade level on standardized tests, show a marked increase in their academic performance if they are placed in single sex classes. This improvement is most dramatic in grades K-8 which is why SSEOA only applies to those grades. While the improvement is more dramatic for boys, there is also some improvement for girls as well. In light of declining high school graduation rates and the need for a skilled workforce, members of Congress concluded that a single sex alternative in the early grades should be part of the effort to improve the American education system.

SSEOA mandates single sex classes be offered only in underperforming schools. Underperforming schools are defined as schools in which average standardized test scores are well below the national average for each grade level. In addition to the mandatory provisions of SSEOA, the statute also provides educational improvement grants to schools with average performance on standardized tests on the condition that they offer single sex alternatives for both male and female students.

While there is overwhelming support for SSEOA in Congress, some issues remain to be resolved. You are a legislative aide to a member of Congress who is involved in drafting the final version of the statute. You have been asked to answer a series of specific legal questions about SSEOA. In response, please include in your answer an analysis of the arguments on both sides of the issues raised in these questions. However, you do not need to argue both sides if there is only one reasonable answer to the question.

1. Could SSEOA be successfully challenged as an unconstitutional exercise of the Commerce Power?

2. Could the educational improvement grants awarded to public schools with average performance on standardized tests on the condition that they offer single sex alternatives for both male and female students be successfully challenged as a violation of the Spending Power?

Sample Exam Question Eight

The State of Midwest is worried about the plight of the family-owned farm in its state. The number of such farms has been declining at a steady rate for a number of years. As part of a series of efforts to help the small farmer, the state has funded a program to set up Farmer’s Markets in each of its three largest cities. Under the program, the state has set up three Farmer’s Markets on land that it owns. Seven days a week during the summer and fall, the state allows local farmers to sell their fresh fruits and vegetables from stands provided in the market area. Space at the markets is provided at no cost to farmers who grow their produce on farmland within the state. To encourage buying at these markets, the state has funded a publicity campaign about the Farmer’s Markets with the slogan, “Support your local farmer - Shop at the Farmer’s Markets.”

Recently, a farmer who resides in the bordering State of Midsouth and who grows fruits and vegetables on his farm in the State of Midsouth asked to use space at one the of the Farmer’s Markets in Midwest to sell his farm produce. He was turned down by the State of Midwest on the ground that his fruits and vegetables were not grown on farmland located in the State of Midwest. After being turned down, the farmer brought a lawsuit claiming that the restriction was unconstitutional.

You are a law clerk to the judge assigned to the case. The judge has asked you to write an analysis of the arguments that can be made by the farmer to support his claim that the restriction is unconstitutional as well as the arguments that can be made by the State of Midwest in support of the constitutionality of the farmer’s exclusion from the Farmer’s Market.