Answer to Question One: The answer is provided in two forms. First is a sample answer to the question. Second is the grading sheet used to grade answers to this question. If you have written out an answer to the question, you should use this grading sheet to grade your own answer.

Adam Audrey (AA) would argue that FCSPA is a violation of the Commerce Clause in Article I, Section 8 which gives Congress the power to regulate interstate commerce. Adam would first argue that interfering with a patient’s decision to have cosmetic surgery is a local activity and not interstate commerce itself. As a result, the law falls within category three of the three Commerce Clause categories. Therefore, Congress can only regulate the decision to have cosmetic surgery if it can show that it could have rationally concluded that the decision to have cosmetic surgery has a substantial economic effect on interstate commerce. Moreover, AA would argue that the activity is noneconomic and therefore the law also must satisfy the stricter standard found in Lopez and Morrison rather than the more deferential standard applied when Congress regulates economic activities.

AA would argue that the decision to have cosmetic surgery is a personal decision in which an individual makes a life altering decision to change their appearance. This is not an economic activity. While cosmetic surgery is a commercial enterprise, Congress is not regulating the economic aspects of that activity, but only the personal decision of the patient. It is attempting to discourage such surgery on moral and not economic grounds.

Because it is a noncommercial decision, the government must show there is a direct and substantial relationship between its effort to discourage cosmetic surgery and an effect on interstate commerce. It cannot rely on a series of attenuated links in a chain of reasoning that link discouraging cosmetic surgery to saving the patient money to the patient having more money to spend on other consumer goods and services to patients in the aggregate who are rejected by the Cosmetic Surgery Approval Panel spending the money they have saved and stimulating the economy. This is the sort of limitless argument whereby any activity, in the aggregate, can be linked to interstate commerce. This is the kind of argument rejected by the Court in Lopez and Morrison because Congress has no general police power.

In addition to the lack of a direct link to interstate commerce, FCSPA also lacks other factors that might influence a court to uphold the legislation. AA would argue the statute does not contain a jurisdictional element limiting its reach to situations where a specific link to interstate commerce can be demonstrated such as if the law only regulated patients who have come from other states to have such surgery. In addition, while Congress has made some findings, those findings are not determinative and, in addition, the findings only show that there has been a steep rise in people having plastic surgery. The findings do not show the connection between the steep rise and a substantial impact on interstate commerce. While the steep rise in cosmetic surgery has helped the industry to be more profitable, Congress is not acting to improve the economic situation of the cosmetic surgery industry. It is trying to discourage such surgery. Further the area it is regulating, the doctor/patient relationship, is not one that has been traditionally regulated by the federal government. State governments are the ones who license physicians, discipline physicians who commit malpractice and regulate other areas related to FCSPA. When the federal government intrudes on an area of traditional state control, a court is less likely to uphold the federal action.

Even if the decision to have cosmetic surgery is characterized as an economic activity, AA will argue, in the alternative, that the law is unconstitutional because Congress could not rationally conclude that such decisions in the aggregate have a substantial economic effect on interstate commerce. Congress is depressing the market for cosmetic surgery, but cosmetic surgery is not like wheat or some other product sold in interstate commerce so decisions about whether to purchase this medical procedure do not have a substantial economic effect on interstate commerce.  Moreover, such procedures are not usually covered by health insurance so that eliminating unnecessary surgeries will not reduce the costs of health insurance, but will only redirect discretionary spending by consumers to other activities. This economic effect is not sufficient to justify the federal law under the Commerce Clause.

By contrast, HHS will argue in defense of FCSPA. First it will argue that the decision to have cosmetic surgery is an economic activity. The patient is deciding to purchase a medical service for which the patient will have to pay a significant amount of money. This is a commercial exchange and not a noneconomic activity.

Because it is an economic activity, the federal government will only need to satisfy the more lenient standard from Wickard v. Filburn and other cases such as the Heart of Atlanta Motel case. It will only need to show that Congress could have rationally concluded that regulating cosmetic surgery will have a substantial economic effect on interstate commerce in the aggregate. First, Congress can show that cosmetic surgery is a large, interstate business in which patients as well as drugs and medical equipment travel across state lines. Moreover, Congress can show that as a result of the law patients will not need to take time off from work because of unnecessary surgery resulting in greater productivity, there will be lower rates of medical malpractice because there will be fewer surgeries thus avoiding a drain on the economy, and patients will have more money to spend on other goods and services, thereby stimulating other more important parts of the U.S. economy. This satisfies the test used by the Court.

Moreover, HHS argues that even under the stricter test from Lopez used if the regulated activity is considered to be noncommercial, the law should be upheld. AA traveled in interstate commerce to seek medical treatment so there is a direct link between his individual circumstance and interstate commerce. Moreover, there is a direct and substantial relationship between the regulated activity, avoiding unnecessary and expensive surgery, and an economic effect on interstate commerce. Avoiding patients paying for surgery they may not be able to afford will avoid a drain on the economy, avoiding potential botched surgeries will avoid a further drain on the economy, and keeping patients from taking time off from work to recover from surgery will improve worker productivity and will add more money to the consumer economy. These are direct effects of FCSPA and should result in the statute being upheld.

Question One Grading Sheet

Federal Cosmetic Surgery Protection Act (40 points)
Congress has power to reg local commerce when it has a subl eco effect on IC-category 3(3 pts)____
Is CSPA a reg of eco or noneco activity-Lopez vs. Wickard v. Filburn-identify issue(1)____
Argue cosmetic surgery (CS) is an eco activity-profit making, sale of service(3)____
Argue gov’t reg. of decision to get surgery-that’s a personal choice not eco activity(3)____
If eco-could Cong have rat’ly concluded surgery decision in agg has subl eco IC effect IC(3)____
Big interstate business-patients travel, drugs, implants, etc; but gov reg limits surgery-effect of depressing eco, but still eco effect; frees up $; avoids eco effects of unnec’y/failed CS(6)____
If noneco activity-use Lopez factors to analyze whether w/in scope of Commerce Power(1)____
Jur’l element- no jur’l element-under statute no need to show effect on IC in indiv case(3)____
Some findings made by Congress, but do they show connection between surgery & IC(3)____
Direct & subst’l effect on IC?-AA traveled interst-nexus to IC; CS is a major eco activity; affects # of CSs; frees up $, but reg. of decision so long series of links in chain-limitless arg(6)____
Can gov't rely on aggregate effect on IC or must gov't show affect in each individual case(3)____
Area trad’ly reg’d by states or fed?-no regs on CS; health care-fed’l role, but also states(2)____
Miscellaneous______________________________________________________(3)____