Commerce Clause Hypothetical

Congress recently enacted a federal statute called the Quitting Unhealthy Ingestion of Tobacco Statute or QUITS.  QUITS bans

(1) the interstate shipment of tobacco and tobacco products
(2) the production of tobacco products for sale in interstate commerce
(3) the cultivation of tobacco for shipment in interstate commerce
(4) the production of tobacco products for commercial purposes
(5) the cultivation of tobacco for commercial purposes
(6) the cultivation of tobacco for non-commercial purposes

Is QUITS constitutional?  Separately consider the constitutionality of sections (1) through (6) of the statute.

Commerce Clause Hypothetical

    In 1979, Congress made it a crime to ship child pornography in interstate commerce.  In 1990, Congress created a second offense to punish the possession of child pornography that has been shipped in interstate or foreign commerce.  Just recently, Congress added a third related offense.  Under the new statute, it is a federal crime to knowingly possess any book, magazine, periodical, film, videotape, computer disk, or any other material that contains child pornography.  Congress added the offense of possession because it concluded that privately possessed child pornography may find its way into the channels of interstate commerce, but be too difficult to detect.  Does Congress have the power to punish possession of child pornography under the Commerce Clause? 

You represent Mike Morris (MM) who is charged with possession of child pornography under the federal statute.  On his behalf, please argue that the statute exceeds Congress’s power under the Commerce Clause.


State Sovereignty and Spending Power Hypotheticals

Hypo Number 1

In the aftermath of Hurricane Katrina, Congress passes the Federal Emergency Commandeering Act.  The Act allows the President, in the case of natural disasters, to commandeer state emergency responders including (1) the National Guard, (2) police, fire and medical personnel, and (3) other trained emergency responders for a temporary period of time in order to be able to coordinate the federal, state, and local response to such a disaster.  Is the Act constitutional?

Hypo Number 2

Congress enacts the Federal School Safety Act.  Under the statute, it provides the states with money to improve the safety of their schools.  As a condition of obtaining money under the School Safety Act, a state must enact a Gun Free School Zones Act to make it a violation of state law  “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” Is the condition constitutional?

Hypo Number 3

As a further condition under the Federal School Safety Act, Congress requires the states to create waste disposal sites for low-level radioactive waste in order to be eligible for federal funds under the Act.  Is the condition constitutional?

Hypo Number 4

As a further condition under the Federal School Safety Act, Congress requires that states ban students from criticizing the war in Iraq.  The additional condition was added to the Act after a student made anti-war statements at school and he was attacked by another student whose brother had been killed while a soldier in Iraq.  Is the condition constitutional?


Dormant Commerce Clause Hypothetical

The State of Massachusetts has discovered a large quantity of a rare mineral called glassex on land owned by the state.  Glassex has not been previously found in other states, although several South American countries are mining glassex.  Glassex is extremely valuable because it can be added to the glass-making process to produce unbreakable glass items that look identical to ordinary glass.  Massachusetts has decided to set up the Massachusetts Glassex Mining Company to extract and sell glassex.  There is heavy demand for glassex from glass manufacturing companies throughout the United States.  The Massachusetts Glassex Mining Company has decided that it will only sell glassex to Massachusetts residents and businesses with manufacturing facilities in Massachusetts.  Is the restriction on sale constitutional?

Preemption Hypothetical

Kris Kane (KK) is the owner of Kane's Exotic Animals in New Albany, Indiana. KK is engaged in the business of buying, raising, and selling exotic animals to customers throughout the United States. During the 18 years KK has operated his business, no person has been injured by any of his animals.  

The Federal Exotic Animal Act regulates the transportation and treatment of exotic animals. The purpose of the Act is to foster humane treatment in the handling, care, and transportation of exotic animals by animal dealers. Under the Act, the Department of Agriculture issues Class B licenses to dealers whose business includes the purchase, sale, and shipment of exotic animals. KK has a Class B License and is in compliance with the provisions of the Act.

In January, 2007 New Albany, Indiana passed an Animal Control Law in order to protect the public's health and safety. The law makes it unlawful “to possess within New Albany any animal which is capable of inflicting serious physical harm to human beings.

Due to the Animal Control Law, KK will no longer be able to operate his business in New Albany since many of his animals are “capable of inflicting serious physical harm to human beings.”

Is the New Albany Animal Control Law preempted by the Federal Exotic Animal Act?

  
Due Process Hypothetical

A public elementary school has an incident in which a child becomes very ill.  The child is allergic to peanuts.  The child ate a peanut butter sandwich in the school cafeteria because she traded the tuna fish sandwich in her lunch box for a peanut butter sandwich brought to school by a friend.  In the aftermath of the incident the school adopts the following rule:

No child can bring any food item containing peanuts or peanut butter to school as part of their lunch.

1) Is the rule constitutional under the Due Process Clause approach of Lochner?

2) Is the rule constitutional under the Due Process Clause approach of Nebbia, Carolene Products and Lee Optical?

3) Is the rule constitutional under the Due Process Clause approach of Griswold?

Equal Protection Hypotheticals

Hypo # 1

A state university (SU) has had racial tensions in its freshmen dorms, including a number of incidents of violence.  It decides to segregate freshmen in the dormitories by race.  After a student’s freshman year, however, students can choose any roommate they want.  The policy is challenged by a freshman at the university.

What result and why?

Hypo # 2

When registering for dormitory housing, SU gives students the option of requesting a roommate by a number of criteria including race.  The program is designed to make students comfortable in their new surroundings.  About 60% of the freshmen ask to have roommates of their same race.  The racial selection program is challenged by a student as a violation of the 14th Amendment.

What result and why?

Hypo # 3

A state prison system uses physical characteristics including height, weight, and physical strength (but not race) to make cell assignments when prisoners are double-bunked in the prison’s reception center for new prisoners.  Under this system, inmates with short stature and slight builds are assigned to be double bunked with roommates of a similar physical description; similarly tall, muscular inmates are assigned to the same cell.  The rationale for this policy is so physically weaker inmates are not taken advantage of by physically stronger ones, a problem in the prison.

What result and why?