MONTEREY COLLEGE OF LAW CONSTITUTIONAL … COLLEGE OF LAW CONSTITUTIONAL LAW MIDTERM EXAMINATION FALL 2010 MICHELLE A. WELSH, Professor EXAM …

MONTEREY COLLEGE OF LAW

CONSTITUTIONAL LAW MIDTERM EXAMINATION

FALL 2010

MICHELLE A. WELSH, Professor

EXAM INSTRUCTIONS

This is a three hour exam. There are two essay questions to be answered and four short answer questions. Each essay question will count for 1/3 of your grade. The short answers together will count for 1/3 of your grade. The Midterm exam represents 1/3 of your grade for the course. The final exam will represent 2/3 of your grade forthe course.

Unless expressly stated, assume that there are no Federal or State statutes on the subjects addressed.

Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.

Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer'"'like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them.

If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.

Your answer should be complete, but you should not volunteer information or discuss legal doctrines which are not pertinent to the solution of the problem.

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1

Question No. 1 Midterm Examination Fall 2010

MONTEREY COLLEGE OF LAW Michelle A. Welsh, Professor

The Pacific School District operates two public high schools in the State of Columbia. In response to the State's budget crisis, which reduced State funds to schools, the school board of the Pacific School District ordered th!'3 reassignment of students to ac_hieve costs savings and greater efficiency. All students learning English as a second language were assigned to Chavez High School. All students with mental or physical disabilities were assigned to King High SchooL After the rea !.location, Chavez High School enrolled 90% of the school district's Latino students, 10% of its Caucasian/white students and no disabled students. King High School enrolled 90% of the District's Caucasian/white students and 1 0% of the District's Latino students. All of the Latino students at King High School were mentally or physically disabled.

After reassigning its students, the Pacific School District received notice from the U.S. Department of Education that the Pacific School District was no longer eligible to receive federal funds because the statute authorizing federal educational funding is conditioned upon nondiscrimination in the assignment of students to schools. The U.S. Department of Education found that the Pacific School District discriminated against students based upon their race, national origin, and their disabilities.

A student and a teacher wantto challenge the District's assignment of students as a violation of Equal Protection under the United States Constitution: Serena Student is an 18 year old Latina student of Mexican descent assigned to Chavez High School instead of King High School because she is learning English. Thomas Teacher is a teacher at King High School who objects to assignment of all disabled high school students to King High School because ofthe negative effects on the education of both disabled and nondisabled students, according to social science data.

Also, the Pacific School District wants to challenge the constitutionality of the denial of federal funding to the District after the reassignment of students.

Please analyze these questions:

1. Does S:ereria Student have standing to challenge the action of the Pacific School District? Assuming she has standing, what constitutional challenges may she bring? Is she likely to succeed? Discuss.

2. Does Thomas Teacher have standing to challenge the action of the Pacific School District? Assuming he has standing, what constitutional challenges may he bring? Is he likely to succeed? Discuss.

3. What constitutional challenges may the Pacific School District raise to contest the denial of federal funds? Is the Pacific School District likely to succeed? Discuss.

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2

Constitutional Law- Fall 2010 Midterm Exam

QUESTION 1 -OUTLINE ANSWER

I. Serena Student v. Pacific School District

A. Standing of Serena 1) Injury -lack of educational choice, segregation (Brown v. Board of Ed, Seattle) 2) Traceable to government- school district policy 3) Redressable by court- injunction, damages

B. Constitutional Challenges 1) Equal Protection:

a) Identify: race, national origin: on face or discriminatory effect and purpose?

b) Level of scrutiny: strict-necessary, compelling interest c) Fails to meet strict scrutiny:

1) Compelling interest, cost savings is not compelling to justify race discrimination

2) Necessary- less discriminatory alternatives are available 2) 11th Am. defense: no abrogation by State; injunction only .

C. Serena's likely success? (Yes: strict scrutiny is likely not met.)

II. Thomas Teacher v. Pacific School District

A. Standing of Thomas 1) No injury- 3rd party standing by close relationship? Teacher and student (compare Dr. & patient, Bartender & customer) 2) Traceable- as above 3) Redressable- as above

B. Equal Protection: a) Identify: disability- on face of regulation b) Level of scrutiny: rational basis (City of Cleborne) c) Meets level of scrutiny: efficiency, cost savings legitimate government interest + and rational relationship, unreliability of social science data

C. Thomas' likely success? (No: rational basis scrutiny likely met cost savings)

Ill. Pacific School District v. U.S.:

A. Standing- direct injury from loss of U.S. funds.

B. Taxing & Spending (Art. I §8) conditions- standards (S. Dakota v. Dole):

1) General Welfare- nondiscrimination serves welfare

2) Unambiguous Condition- Yes, if disability is specifically included, or if not then no because less constitutional protection than race, sex.

3) Related to a Federal interest- Yes, equal protection in education

4) Not barred by other constitutional provisions - no, but goes beyond constitutional protection for disability (not for race).

C. Equal Protection standards - as above

D. Likely success?

1)

Marbury v. Madison established the power of the judiciary to review the constitutionality

of the actions of the legislative and executive branches. If a law is found to be

unconstitutional, the judiciary may refuse to honor or enforce it. Justiciability is the self

imposed limits of the power of judicial review, and holds that certain matters are

inappropriate for the court to assert power.

For a suit to proceed, the plaintiff must have standing. In order to have standing, a

plaintiff must suffer some ~which can be traced to the alleged actions of the I - ...._

.JDv tl~:fen9_qnt and for which there is a judicially available r~.

The E£ll!~~_pro!~E!i.o~_glau~e of the 14th Amendment prohibits the state from denying

any person within its jurisdiction equal protection under the law. It applies to the federal

government through the Due Process clause of the 5th Amendment. A law may be

discriminatory on its face, or if it has both a discriminatory purpose and effect. __ .....,. ... ~~-------·~-·-"'1' Discrimination based on race or national origin is held to a strict scruting standard,

----··-~~~-·-"~"'*

which places the burden on the government to prove that the law is necessary in order

to achieve a compelling government interest and that it is the least discriminatory

method available. Discrimination based on gender or non-marital ~;>arentage is held to ~-~~-·~ .,. .. ~~" ·--··~~··-----········ ·-··-,.'""""

intermediate scrutiny, which places the burden on the government to prove the law is

significantly related to an important government interest. Discrimination based on ~Q_~,

sexual orientation, disability, wealth, etc. is held to a rational basis standard which ~""""'-------··- ···~.... -·-"-··---··--·--

requires the plaintiff to prove there is no rational relationship between the law and a

legitimate government interest.

1 . Serena Student

Serena would argue that she has suffered an injury because she has been

discriminated against based on her race. Brown v. Board of Education held that

"separate but equal" is unconstitutional, because separation invariably results in

Page 1 of 5

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1 tnri/i ~(/

(Question 1 continued)

inequality. Even if the facilities are maintained in a completely equal manner, with

completely equal instruction, separation based on race results in feelings of inadequacy

and increased racial tensions. This is especially true in elementary and intermediate

grade levels. Additionally, she would argue that it is highly likely that Chavez and King

high schools are not equal. Because all students learning English as a second

language are assigned to Chavez, it is likely that they would receive sub-standard

education. The very reasons behind this grouping (cost savings and greater efficiency)

indicate that there are additional challenges to instructing ESL students. Serena would

argue that it is highly probable that students at Chavez would not be exposed to the

same level of education in areas other than English as the students at King. She

therefore likely would be found to have suffered injury. Since this injury can be traced .. ------,. ~,,.,.. ____ _. ...... ~--·~

to the Pacific School District's ("PSD") reassignment of students, this injury could be

traced to PSD's actions. And there is judicial remedy in that the court could order ·---------cessession of the policy/application. Serena therefore would have standing. Though it ------....... ----··----------_____, should be noted that since Serena's injury is based on her ESL status, and not due to

any apparent disability, she would have standing only to challenge that portion of the

policy.

Equal Protection

·" .ar ~ See definition above. Serena would argue that the policy in question is discriminatory ')"' v r

~· 1 ~,.."1"- on its face since it calls for all students learning English as a second language to be ----~""~-""''""-~~

assigned to Chavez High School. She would argue that, obviously, anyone not

speaking English as his/her primary language must be of a different national origin, the

1 language of the policy itself is discriminatory. She would also argue that the policy

1 certainly has a discriminatory effect in that it has segregated all of the Latino students

~~"~o>'•o'N••-•o-<-•~··•·~-··~· -" <' ~·•-•-'"'~"'•~''"-·"- '"-"'""~.

(with the exception of those who are mentally or physically disabled) to Chavez. Since

the stated purpose of the policy is to segregate the students based on their command

of the English language, the irl!e..IJJ: is also discriminatory.

PSD would argue that nowhere in the policy does it mention a student's race, ethnicity,

or national origin, and therefore is not discriminatory on its face. They would point out

Page 2 of 5


that it is entirely possible that students who were born and raised in the United States

and are US citizens may still fall within this category (e.g., a child born in the US into a

family who's adult members do not speak English will likely enter school as a student

who's primary language is that of their parents). They would then argue that while the

results may well have lead to all Latino students being assigned to Chavez, the intent of

the policy was not to discriminate based on race. Rather, it was based on an ~P-Ll9

i'!lpro~_ao.Q..£~. Since the policy did not have a discriminatory intent,

PSD would argue that it is not discriminatory under Equal Protection. It is likely,

however, that the court would find the law to be discriminatory on its face since ESL -··-----.. """""·'~--~-.. -------,., relies quite heavily on national origin, and that it had both a discriminatory effect and

intent.

Since the discrimination in question is based (indirectly) on national origin, it would be

held to strict scrutiny. PSD would argue that the State is in a budget crisis. As such, "'=: ..... ,..,_.,_...,_-n-"'-~ ...........

cost savings and improved efficiency are paramount to continued operation of their ..,..,.....,_,__.,._,.,... . ..,.....,-••,.---~------~-~-·'>'--"<.-~.-..--n••_,.,.-'~--district. Since the education of high schoolers is necessary to the continued

improvement and functionality of a society, a compelling state interest exists. They ..,.......,.,.,._~""-7='~--'"""""-.......... ..,.,..--._,, .. _.._, __ ·~

would then argue that the policy is the only reasonable means of accomplishing those ---~-··----~-,.,.,,~...,._""""'-__ M_O~O·~~,-.-~

cost savings, as it consolidates ESL students into one school, where the PSD can then

centralize the teachers who-are best qualified to handle ESL students, as well as any

specialized learning materials and other resources. However, since there is no

information provided in the facts concerning how much of a savings this would

generate, what other cost savings options have been explored, etc. it is unclear whether

or not this policy is the least discriminatory option available. Since it is likely that other ~>====-w""'""-=~~"-~_,__,,._, __ .. ._"~~---·-<·~"~"',..,.,.,."'~~-~··___, __ ,""-~''"~"'"'""' .. -·-·~-·-·":,,_ •

options which do not involve discrimination would be possible (e.g., labor costs,

lobbying for increased funding, cutting administration costs, etc.) it is likely that the court

would find that strict scrutiny has not been met. ---~ ---- v- ~- --- - ·~--~----...... ~ ------·- ,. -·-· ··-·-

2. Thomas Teacher

See definition of standing above. Thomas would argue that he has suffered injury "'' -··-····--;·

because of the negative effects on the education of both disabled and nondisabled

Page 3 of 5


students. These negative effects would result in increased stress and difficulty in doing

his job. However, this is likely insufficient to meet the injury standard. Thomas would

next argue that he could assert standing on behalf of the students. Generally, third .... ,..,,,.,,,,,,._, __ ~-m~,_,~,-----,-•,.,=->-=----- .,..-w""'"'""'·-;J

party standing is not permitted unless there is a close relationship between the ._.,,_~~-···~-~,_,.,,_,..,..... _____ . ____ _,

complainant and the third party, and there would be difficulty in the third party bringing

suit on his/her own behalf. Here, it is likely that Thomas, as a teacher to the high

school students, does have a sufficiently close relationship to the students and that this

relationship is related to the behavior complained of. Since the majority of the students

are minors, it would be difficult for them to bring legal action themselves; and since

many of the students are also disabled, that would create additional hurdles for them to

bring action. While this may be true, Thomas would then have to prove that the

students have suffered some injury. This assertion is based upon ~_§_Qi~nc~_Qat~:.

Because of the speculative and somewhat fluid nature of social science data, it is

unlikely that this would be sufficient to establish an injury. As such, Thomas likely

would not have standing to pursue this action.

Should the court find that Thomas does have standing, he would assert a violation of

the students' Equal Protection rights (see definition above). Similar to Serena's ------~--~---~..-·---~----.._., -~-~'\

argument above, Thomas would argue that the policy is discriminatory on its face since ~--------"-""·~------~ ------------.. ~--~--·--·------·~·--··"T

it bases school assignment on mental or physical disability. Additionally, as above, he

would argue that the policy has both discriminatory intent and effect. PSD would argue ~-...__,_.,...._,_.. ___ ~~------~-.. ~----~-~-----~--~~-~-~"·--·-----·-··-'

that the policy is not discriminatory on its face (as above), or that it has a discriminatory

intent (also as above). As above, the court would likely find the policy to be

discriminatory on its face, as well as having both discriminatory intent and effect.

Because this portion of the policy is discrimination based on disability, it would be held ~--~---·-"p"""""'"·?,.._.,..."f

to a rational basis standard. Thomas would therefore bear the burden of proving no •> • -~~A-'""'•~··~-···~-""'"'-'''"'"'"~~ ~~--..· •

rational relationship to a legitimate state inter§l_§_L Since, as stated above, cost savings -~.-- . ",.,.,.,.,~.._,_, ... , . .,,._~_,~,--..,..~--r~·--··-·--···-·-·"~----~"' -··- "••••••• ··--·-----··· ····-- . l -., .... .,.,. ···• .... ·-;

and efficiency of school operations is a legitimate state interest, and the policy is related ~,~~-~·><• ~- ------- \.. "'~----·--· ·---- • --------- -------- ---------------· -------1•

to that goal of cutting costs, it is likely the court would find reasonable basis met and

uphold this portion of the policy.

Page 4 of 5


3. Federal Funding

The Tax and Spend Clause gives Congress the power to collect taxes and spend for __,..,""'""'""""""'"'""''._,,,, •• , ..... ,,,,,,"-.=<·•··,=· ... ..._~"""=·'.._ __ .__,_,

the general wellfare. While Congress can not legislate for the general wellfare, it may

condition spending based upon promoting the general wellfare. Conditions must be: 1)

related to the general wellfare; 2) unambiguous; 3) not overly coercive; and 4) not

prohibited by other constitutional provisions. Here, federal funding is conditioned upon

nondiscrimination in teh assignment of students to schools. Promoting diversity and

equality among ethnicities, disabilities, genders, religions, etc. is for the betterment of

our "melting pot" society, and serves to maintain equal education between schools thus

improving our educational system as a whole, funding of schools and placing non-

discrimination conditions upon that funding are related to the general wellfare. The

condition is clear and unambiguous, giving the state the power to accept or reject it. <m==-•~"'~""'""""'-v""'"""'"""""""''.....,.~-'"",.,_,.,...,-.__ ~-"="~

There are no constitutional provisions prohibiting such restrictions. -·---------------....... '~"""\.

PSD would likely argue that this condition is unduly coercive. States and school -""-''""'_"'_._..__....,.".,,.._..,,..,"'"""""'

£\ ·:~-·

¥_; t' ·\'..:, ' ! A:.,:·m:~

systems rely heavily on federal funding in order to provide essential services to the

community. Because these funds are vital to the state and schools, placing conditions

on the funding is unduly coercive. However, because the condition involves non

discrimination policies consistent with equal protection under our Constitution, it is likely

the court would not find this condition to be coercive or unreasonable. As such, PSD's

challenge would likely fail.

Page 5 of 5

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I



The United States Congress enacted the "Beat Childhood Obesity Act" (called "the Act") which required all distributors and suppliers of food products to schools serving persons under 18 years of age to meet nutritional requirements set by the Food and Drug Administration (FDA). Congress made findings that obesity creates a threat to public health, that its costs impact the. U.S. economy, and that any school enrolling more than 25 students affects interstate commerce. President Smith vetoed the Act, stating that Congress lacked power underthe constitution and that he opposed the Act as an intrusion on States' rights. Congress overrode President Smith's veto and the Beat Childhood Obesity Act became the law. President Smith then appointed Dr. Anderson as Director of the FDA selecting her because of her opposition to the Beat Childhood Obesity Act. Dr. Anderson proceeded to enact regulations setting the FDA nutritional standards so low that the American Medical Association (AMA), a private organization of physicians, published its own higher nutritional standards for schools and issued a public statement warning Americans not to rely upon the FDA regulations.

In January President Jones was sworn in to replace President Smith. President Jones immediately removed Dr. Anderson as Director of the FDA

In response to the federal FDA regulations, the legislature of the State of Columbia enacted a State law requiring nutritional. standards according to guidelines ofthe American Medical Association for food products distributed or supplied to all schools in the State of Columbia. The Columbia statute also prohibited the placement of toys in fast-food restaurant meals served to children under 18 years of age unless the AMA nutritional standards were met.

B~rgerfun is a fast food company which operates popular restaurants nationwide. Burgerfun supplies meals to schools but they do not meet the FDA or AMA nutritional requirements. Burgerfun also distributes advertised prepackaged toys in its "Toyburger" meals for children at each of its restaurants, including those in the State of Columbia.

Please analyze these questions:

1. What Constitutional issues can Dr. Anderson, the former FDA Director, raise to chall.enge her removal from office? Is she likely to succeed? Discuss.

2. What Constitutional issues can be raised by Burgerfun to challenge the constitutionality of the Beat Childhood Obesity Act? Is Burgerfun likely to succeed? Discuss. ·

3. What Constitutional issues can be raised by Burgerfun to challenge the law of the State of Columbia? Is Burgerfun likely to succeed? Discuss.

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3

Constitutional Law- Fall 2010 Midterm Exam

QUESTION 2- OUTLINE ANSWER

I. Dr. Anderson v. U.S.

A. Removal Power of President (Art. II §2) 1) Political Reasons - Weiner v. U.S., Humphrey's Executor: If quasi legislative or judicial office removal without cause is uncon: Independence needed?

2) Non legislative or Judicial: may be uncon to require cause per Free Enterprise Fund, Myers v. U.S. (Congress can require cause but did not)

B. FDA Administrative Agency

1) Created by Congress, not President: Delegates authority to Executive

2) FDA Director- Q: quasi legislative rule making authority or purely . Executive? (Discuss & conclude)

II. Burgerfun v. U.S.

A. Commerce Power to enact Beat Childhood Obesity Act

1) Lopez- Channels? · Instrumentalities?

Effects - 25 or more students = effects?

2) Morrison -effects: Economic activities - yes: food sales Findings -yes: public health threatened Jurisdictional element- 25 + students affects commerce Too attenuated- Like Lopez guns (food in schools) or meets Morrison test?

B. 10TH Amendment- states' rights in police power to legislate for health & welfare

C. Contracts Clause: No: states only (Art. I §1 0) (Contracts with school districts impaired)

D. Privileges & Immunities- no: States only, Federal laws are not covered, only states' laws and acts and citizens not corporations.

E. Unconstitutional delegation of authority to FDA to set standards:

F. Likely success?

Ill. Burgerfunv. Columbia

A. Preemption by Beat Childhood Obesity Act:

1) Conflict- no: can comply with both, federal "floor" & silent re toys.

2) Field - intent to occupy the field?

3) Defeats Federal objective- no: higher standard achieved by State, or Yes: uniform standard throughout U.S.

B. Dormant Commerce Clause:

1) Discriminatory on face - no. Applies to business in & out of state

2) Neutral but discriminatory effects on commerce? Pike test: a. Nutritional standards: FDA or AMA

1) Burden on commerce - clearly excessive? AMA standards relate to local benefit, not excessive?

2) Local benefit- health & welfare of children, costs.

b. Toys in meals: Pike test 1) Burden on commerce - excessive? Repackage toys for 1

state maybe uncon (Hunt v. Washington) 2) Local benefit- prevents exploiting children, false

advertising, etc.

C. Contracts Clause- contracts with school districts impaired? (or not) justified?

D. Privileges & Immunities: no. Applies only to citizens, not corporations + Law applies to in state business also.

E. 11 1h Am. Immunity: damages only (Ex Parte Young- injunction)

F. Likely success?

jtfl~ V)v\)

2)

Marbury v. Madison established the power of the judiciary to review the constitutionality

of the actions of the legislative and executive branches. If a law is found to be

unconstitutional, the judiciary may refuse to honor or enforce it. Justiciability is the self

imposed limits of the power of judicial review, and holds that certain matters are

inappropriate for the court to assert power.

For a suit to proceed, the plaintiff must have standing. In order to have standing, a

plaintiff must suffer some injury which can be traced to the alleged actions of the

defendant and for which there is a judicially available remedy.

1. Dr. Anderson

Dr. Anderson would assert that her removal caused injury in the fact that she is now . ---'""~'"""''"'''''-"=!0 ....... ,_.,.,""""-4

without work, and that this injury can be traced to the actions of President Jones. ---....-f: .

However, it is likely the court would find that there is no judicial remedy as her ~~"=----~·~·~----~~·--

complaint is one of political question. The court is prohibited from ruling on political _,...,,,,.,,~'"""'''"'""--··'-"-~~'=''"' _ _, __ .._t

questions. A political question is one which: a) the Constitution assigns to a coordinate

branch of the federal government; b) requires an unquestioning adherence to a

coordinate branch's decision; c) judicial involvement would create a lack of respect for

\ another branch; d) for which there is no judicially manageable remedy; e) a judicial

decision would create multifarious direction from different agencies or branches. Here,

the Constitution grants the President the power to appoint officers, representatives and """"-'~'--~"''~., ... __ ..,..... _______ '-=""" __ ,_ ..... ~-~-~.--·~~-~-~-~ ... ~~._..,_,_ ....... ~.,...,.,"""'~-,.-~~-""'"=---~·,..~-~~-- < ......... ~~~~.,,,,

ambassadors of the United States. Inherent in the power to appoint is the power to

remove. President Jones' decision to remove Dr. Anderson as Director of the FDA was ~~~....,--·-'-'-"~···"·•\.

based on the disagreement between the President and Dr. Anderson on how particular

FDA standards were to be established and at what levels. Since appointment and

removal of officer is a power vested in the Presidency, Dr. Anderson's removal was

based on an internal decision of the executive bran.glJ, and judicial involvement would ..,,,,,_ ... ,,~--""'--""'-"'~·-·~----·~-· .

require an intrusion into the operations of the executive, this matter would be deemed a

Page 1 of 7

\


political question and therefore non-justiciable. \ S G fJ1~o~At-f./-,/) i"-0_/v(}'1l?l--1 ~ f 0 \ \ /\..£>_ 0~·1> ,1\ ~- "!

2. Burgerfun ("BF") v. Beat the Childhood Obesity Act ("the Act") { ,(.,~:~{"- ,?~. t (,~ i

. ,,· ._,1 ;:-.:~ d {.-~·(~-::: .. /:,·

BF would assert that it has been injus~d by the Act in that they must now adhere to _,.,. .. --

nutritional standards not previously required. This would increase their costs, reduce

profits, and require significant changes to their menu and operations. These injuries

are traceable to the Act, and the judiciary has available remedies in the form of striking ---- -~---

down the Act as unconstitutional should it so find.

Ripeness

In order for the court to hear a case there must be an actual ~-~~_9_r:!troy.§~Y-

Where no actual or imminent threat of harm is present, the court should refrain from

involvement as the case is not ripe. Here, Congress would argue that BF has not yet

suffered any injury since there are as of yet no lost profits, no additional costs incurred,

etc. However, where pre-enforcement compliance will result in undue hardship and the

court has all the available information needed to render a decision, the court may still

review even though ripeness is not otherwise met. Since compliance with the Act would

require BF to make signifiance changes to its menu and incur (potentially) tremendous

costs, as well as risk profit loss, it is likely the court would permit the case to proceed.

Commerce Clause

BF would argue that Congress lacks the power to legislate in the area of nutrition.

While the Tax and Spend Clause permits Congress to spend federal money to for the -~"'"""""'"'·'~'""'"¢"••"~''~>~' -,,_,,,..,-... --·~.,-M~~--··•~~-~~.<~··

general wellfar._e, they are not permitted to directly legislate for that purpose. BF would ---.---· _.......,·-~·~·" ,.~-~·· ,.,,......,..,.,_,~·~·"· ....

argue that legislation based on nutritional content is solely for the general wellfare and

therefore is reserved to the States' police powers under the 1Oth Amendment. Where ,......,,.,.,.,.-~-_.,,,,..,c',..,.~,-""''«~>·"·"'"~-- .. ---~·--··· ,._,.._._...,_~. ·'

the area legislated is one of an economic nature, it may be viewed in the aggregate;

non-economic activities may not be viewed in the aggregate.

Congress would argue that the Act falls within their legislative power under the

Commerce Clause. The Commerce Clause states that Congress has the power to

Page 2 of 7


regulate commerce with foreign nations, among the several states, and with the Indian

tribes. Commerce includes the channels of commerce (roads, waterway, railways), .... ,.,__,H~--,--~--

intstrumentalities of commerce (trucks, trains, planes, people transporting things in

commerce), or if the area has a significant impact on commerce. Here, Congress ~--~ ... ...--.-~,.~~""'~-...-<>~--... ·-·-.... ·~··-·~~"!

would argue that obesity (and therefore, nutrition) creates a significant threat to public

health, that its costs impact the economy as a whole, and that the health and wellbeing

of stundents has significant impact upon commerce--that obesity creates less

productive workers, inhibits those people from engaging in interstate commerce, and

affects the entire economy. This argument is backed up by Congressional findings --.-.......... --.. --~~-..--~-~

which also concluded that any school enrolling more than ?§~ stude_l}ts affects interstate

commerce.

While the court does not need to accept Congressional findings at face value, they will

give great deference to such findings. However, while the findings conclude that

schools with more than 25 students affect interstate commerce, the Act has no

jurisdictional element restricting its application to those schools. Instead, it applies to all ""'"'~·-~-.....,...-~-M>~,_.~.,., .. ,p-o<-""" ____ .,.,,..~"""""t>

l 'rr'rtr\ schools serving persons under 18 years of age, no matter how many or few students ) 'C>'a pr:\ r are enrolled. Because of this, it is likely the Act will be struck down as unconstitutional

because it does not limit application to an area which has a substantial effect on

commerce. 6~.::~ r-~O~'J \'\--~ \.v ..... ..,........ 5 c,{'-:.lr?,.---\4,.-s'~ -P~tt-P-c:r ·:

Delegation

BF would further argue that Congress seeks toj_II]J~!."9.Q@IIY. .. 9.§l~gate legis1.9!!Y§l.C!L:~Jb9ILty . . "' '""'"~~"'''""'.,_ .... .,.-~J,_., __ .,,_.,,.$~

to someone other than themselves. Since the Act relies on standards set by the FDA,

with apparently no clearly defined standards on which to base the nutritional

requirements, BF would argue this is an improper delegation __ :_ However, Congress is -·~-·~"''"'""""-~•·- ' mq• ·•~ , ~·~•" • ~-,,.,.,..--·••~-~»-•~- ~- ,_.,.~ '>

permitted to delegate this type of duty an appropriate executive agency, and delegation

only requires definable standards if the authority is being delegated to a non

governmental agency.

Due Process

Page 3 of?

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The Due Process clause provides that the government can not deprive a person of life,

liberty, or property without due process. Where a law attempts to do so, the plaintiff

has the burden of proof to demonstrate that the law has no rational relationship to a

legitimate state interest. Here, BF would argue that their right to conduct business has

been arbitrarily denied them by Congress without notice or the opportunity to be heard.

However, since the Act is rationally reJated t~.Jb~_interest ot~~~-~~~!!J:t and wellbeing, .,.,.__...-·

and it is a reasonable restriction on BF's operations, it is likely this argument would fail.

3. BF vs. State of Columbia ("SOC")

Dormant Commerce Clause

The Dormant Commerce Clause ("DCC") is the policy that states law may not

discriminate against non-residents or unduly burden i~t.§_£Q_!!I~rce. A law may -~---_,..,_.,,-~ .. ~ .. ~~-~-----~~--,~=~-... ~""~-........ ~,.,..=-·"""'"''""'''"'''"""'-

be discriminatory under the DCC either on its face, or if it has a discriminatory intent or ............... ~~ ....,_~--·-~·<'~~ .. -.-·~--··~'""- ·-~---..

effect. Where a law is a burden on interstate commerce it may still be upheld if the -----~.,.....,-"\

burden is outweighed by an important state interest. Exceptions are if Congress

consents or if the state is acting as a market participant.

SOC wouid argue that the iaw does not discriminate against non-residents since it sets

the same standard for all suppliers/distributors wherever they are located. The law ~»=,;,_~~ ... ~,--=~R .. «>ooM~~«'-'"' ~~""""--...

does not seem to be discriminatory either on its face, nor have a discriminatory intent or

effect since it would affect in-state and out-of-state suppliers equally.

BF would argue that SOC's law rerquiring nutritional standards according to the AMA

guidelines places an undue burden on interstate commerce. If states are individually "'JV•• ',• ~ • e• ,,,v"•¥•'~~···~'"''•~" •..-·-•• ~--·~•-·e~. '0~-._.,_. _,,_._,_. --""•·-··--• "vJ•-·~~ • ~~·---»-•-•·•·--·••--•~••~-·.•..,,

permitted to set their own nutritional standards, suppliers would be forced to limit their

business exclusively to certain states or incur significant costs in order to comply with

multiple state standards. Such a system would inevitably create confusion and be

pro6Tem"aHc: Iris likely that the court would find that the soc law does place an undue

burden on interstate commerce since it attempts to force suppliers/distributors to

comply with multiple (and possibly contradictory) standards. While public health is an

Page 4 of 7


important government interest, it is unlikely the court would find that interest to outweigh ---~ ~,"""""~·--""'""·~--·-~o-.•o 'M'o~•·~----~•.0·-·~--~--~- ..

the burden, and therefore hold the SOC law unconstituional. c ;;-.:_;-; -~- t /;" n

'"-r"'"--ri·~- () ltr ·,£,;.....,__)...!\ I t{; ·...-c"'t.AAA-< .• {1'--······ , I Preemption

The Supremacy Clause establishes that federal law is the supreme law of the land and -·""~"""""'""-_,.,~D"~~~·"-~-w·~·~..........,_,.~.~-"\

preempts state law. Express preemption occurs where Congress states in writing that .,_,..,..._, . .,._.,..,..~---"'""''-''"n'o-·•-·-~

the states are prohibited from legislating in a particular area. Implied preemption .-~--~-~--------~~

occurs where: 1) state and federal law conflict such that compliance with both is -----~---

impossible; 2) where federal law occupies the field; or 3) where the state law int~rf~_r~s ·----·=-... ----·~·-·---·-------·..,;! ·----with the federal objective. Here, Congress has not prohibited states from acting, nor

does there appear to be a direct conflict between the Act and the SOC law (since

compliance with the SOC law will also comply with the Act).

However, the Act (assuming it is upheld) is likely to be found a~~cc~py~~~--!-~~l!~.c:l_:~

Here, Congress has established that nutritional standards are important to the US

economy and US in general, and that standards are necessary in order to protect those

interests. By setting national standards they have given suppliers/distributors the ability

to comply on a national level. It appears that the Act was intended to occupy the field . .-..--~-·~'"•'h----~····-··-~M<•-~~'""~OWO~--~~---·-""""'

and be the only standard-setting mechanism in place nationally, similar to

environmental standards or other FDA nutritional information packaging requirements.

As stated above, if states are permitted to individually it would force suppliers to incur

significant costs and difficulty in complying with multiple and potentially contradictory

requirements, thus interfering with the federal objective of providing nutritious (yet ---n'''"'"''''-~"-,.·~·-'~'~"._"_'_"~~- ,~~,-~~··-·-if"~···· ~·•n·~···--••"''~"·~-~•·•-••·~- -~ ·--- '' .-.-~-·~·- :•r

presumably low-cost bulk) school foods.

Privileges and Immunities

The Privileges and Immunities Clause of Article IV prohibits states from discriminating

against non-residents with regard to important economic activities or fundamental

rights. Where a law discriminates against non-residents it is unconstitutional unless it is

necessary to achieve an important non-economic state interest and no less-

Page 5 of 7


discriminatory means is available. It only applies to natural persons, not aliens or ,~N~,-~~--~___.,""""-....;,.

corporations. Here, it is unclear whether BF is a corporation or some other business ~ ..... ,.,_. .... ___._..,.,.....--··=,..

form. However, since it is a large, nationwide company operating a chain of fast food

restaurants, it presumably is a corporation and therefore can not raise P&l.

Contracts Clause

The Contracts Clause prohibits states from interferring with existing private contracts.

BF would argue that SOC's law interferes with their existing contracts to distribute

advertised prepackaged toys in its "Toyburger" meals. The facts are unclear as to who

is "advertising" though. If the advertisement is merely for BF's benefit, then this likely

would not be considered an existing contract. If, however, as is rather common in kids

meals, the advertisers are outside companies (such as movies, games, TV shows, etc.)

this it is likely that the SOC law would be deemed an unconstitutional interference with Is I , -~·-··------~-.. -·.--.. ~---·---··"""·--·- .. ·····~

... \ f\fl/t.J,~ ~?se -~~~~~§'_<?~currently in effect. As such, BF would be permitted to continue

distributing the toys for which it was contractually obligated to do so, but (assuming the

SOC law were upheld) would not be permitted to enter into new contracts for future

distributions within the STate of Columbia. {,.:..Crzrr) fc:!; LA- r··-

Equal Protection 7 "' I

The E_g~~J .. E.!'.9J~<2!iQ,n Clause of the 14th Amendment prohibits the state from denying

any person within its jurisdiction equal protection under the law. It applies to the federal

government through the Due Process clause of the 5th Amendment. A law may be

discriminatory on its face, or if it has both a discriminatory purpose and effect.

Discrimination based on race or national origin is held to a strict scruting standard, ~':'-" """" ~"··---~· ·-------~ --~·-----~--

which places the burden on the government to prove that the law is necessary in order

to achieve a compelling government interest and that it is the least discriminatory

method available. Discrimination based on gender or non-marital parentage is held to ... ~.--_-,_,~~~ >-~------- -· _,..-· ······--··--· ---·"'··- ---- -~------- -

intermediate scrutiny, which places the burden on the government to prove the law is

significantly related to an important government interest. Discrimination based on age,

sexual orientation, disability, wealth, etc. is held to a ~~-t-~onal basis standard which

requires the plaintiff to prove there is no rational relationship between the law and a

Page 6 of 7


legitimate government interest.

11th Amendment

The 11th Amendment provides that a state may not be sued by a citizen. Exceptions

are: consent; Congressional authorization under the 14th Amendment; for injuctive

relief. Here, BF would be suing for injunctive relief (i.e., prevention from enforcement of ~-·--~~~~ .... ---~-~

the law) and therefore suit would not be barred. 6-ti?;rc;;\ /d '"'-1

lyty)L~ ~llQ __

'J ,1 TY

)) r·

( ~-v-1--~!>(}'"<)

(\ t_i"'T'" /..' I /1 ( I It -+ . .rJ \.) 1'.\ ,,-•. v.:;,,l/ I'·J'r

( o _. r /~ ~< v- L., f . .)_)_ 111.1 ;/' / ', C/~-R_ -~--.. e ) r

\

( (

" ( ;<...._

V 1 l

\ ----------¥--- ------··-- ---·---------... ,,.·' ) '

Page 7 of7

L···. .,. ·-

l .,._' ,_,. c



Please write a short answer to the following questions. Each question is worth 25 points.

A. A city zoning ordinance required a permit for any type of development in the designated "historic area". A developer who owned a large Victorian home in the historic area applied for a permit to convert the house into five rental units, promising investors a 25% return on their money after the rental units are completed. The permit was denied on grounds that the proposed development would change the historic character of the area. The developer sued the city alleging th~t the property's value was decreased by $500,000 because it cannot be developed. What constitutional issues can the developer raise and how wi.ll the court resolve them?

B. The President entered into a treaty with India to maintain a joint list of suspected terrorists and to capture or ki.ll anyone on the list found in either country. Congress refused to ratify the treaty. Nevertheless, the President maintained the joint terrorist list and agreement with India. Jamal, a U.S. citizen, was captured by United States agents in India becf;luse his name appeared on the terrorist list. He was held in India without charge or a hearing. What constitutional issues can Jamal raise in his petition for habeas corpus filed in U.S. federal court and how will the court resolve them?

4

C. The State. of Columbia enacted a new law in 2010 prohibiting the possession of handguns by any person designated by a police agency as a member of a recognized gang. Andrew was identified by a city's police department as a gang member, although he had never been convicted of any crime. Andrew was arrested under the State law and convicted of possessing a handgun which was found in his home during a routine fire inspection. Andrew had owned the handgun since 2008 and it was properly registered when he purchased it. What constitutional issues can Andrew raise on appeal of his conviction and how will the court resolve them?

D. A trade school operated by a State community college to train electricians, plumbers and computer technicians admitted students to its program based on their educational background and their scores on 21n aptitude test. In addition, the Trade School had an Equal Opportunity Policy i:lllowing various factors to be considered including applicants' prior work experience, their involvement in extracurricular activities, and their race or national origin. The Policy's stated purpose is to enhance diversity and to address a lack of racial and ethnic balance in classes. Betty, who is white, qualified for admission based upon her educational background and test score, but she was not admitted although an African-American applicant with an identical education and test score was admitted to the trade school program. What constitutional issues can be raised by Betty and how is the court likely to resolve them?

*************

5

Question No. 3 Fall 2010 Midterm Exam


Please write a short answer to the following questions. Each question is worth 25 points.

A. A city zoning ordinance required a permit for any type of development in the designated "historic area". A developer who owned a large Victorian home in the historic area applied for a permit to convert the house into five rental units, promising investors a 25% return on their money after the rental units are completed. The permit was denied on grounds that the proposed development would change the historic character of the area. The developer sued the city alleging that the property's value was decreased by $500,000 because it cannot be developed. What constitutional issues can the developer raise and how will the court resolve them?

Penn Central test: Economic impairment, investment expectations, character of action

Regulatory taking: no denial of all beneficial use Diminished value only (Lucas).

B. The President entered into a treaty with India to maintain a joint list of suspected terrorists and to capture or kill anyone on the list found in either country. Congress refused to ratify the treaty. Nevertheless, the President maintained the joint termrist list and agreement with India. Jamal, a U.S. citizen, was captured by United States agents· in India because his name appeared on the terrorist list. He was held in India without charge or a hearing. What constitutional issues can Jamal raise in his petition for habeas corpus filed in U.S. federal court and how will the court resolve them?

1) President's Power- against Congress "lowest ebb". Foreign policy- Executive agreements per Article Ill, Dames & Moore War powers- Commander in Chief: can order detention? Killing?

2) Due process- hearing Hamdi, Rasul, etc. Habeas Corpus is available

3) Bill of Attainder- Art. I §9 prohibits singling out person for punishment

4) Non justiciable Political question? (Foreign policy, treaty powerGoldwater v. Carter)

C. The State of Columbia enacted a new law in 201 0 prohibiting the possession of handguns by any person designated by a police agency as a member of a recognized gang. Andrew was identified by a city's police department as a gang member, although he had never been convicted of any crime. Andrew was arrested under the State law and convicted of possessing a handgun which was found in his home during a routine fire inspection. Andrew had owned the handgun since 2008 and it was properly registered when he purchased it. What constitutional issues can Andrew raise on appeal of his conviction and how will the court resolve them?

1) Ex post facto law makes gun illegal after possession. Article I, §9

2) Due process- fundamental right to bear arms in home per 2nd Am. Heller, McDonald. Placement on list of gang members

D. A trade school operated by a State community college to train electricians, plumbers and computer technicians admitted students to its program based on their educational background and their scores on an aptitude test. In addition, the Trade School had an Equal Opportunity Policy allowing various factors to be considered including applicants' prior work experience, their involvement in extracurricular activities, and their race or national origin. The Policy's stated purpose is to enhance diversity and to address a lack of racial and ethnic balance in classes. Betty, who is white, qualified for admission based upon her educational background and test score, but she was not admitted although an African-American applicant with an identical education and test score was admitted to the trade school program. What constitutional issues can be raised by Betty and how is the court likely to resolve them?

Equal protection- Race discrimination: strid scrutiny applies .Affirmative Action Grutter, Gratz: race is a factor among others Purpose - racial balance: compelling? Trade School - like law school or college? Different?

***************

3)

1)

•. ~) '.jj\!~'

The developer may argue that there was a regulatory taking of his property. S!t::....f'€A,.;y::;: _ ----·-

The Constitution prohibits the taking of private property unless for a public use and there

is just compensation. There are two types of takings; actual p~sical takLIJ.9.s and regulatory

~?En9.S. The city has not physically taken the developers victorian home. However, denial of the

permit may have been a regulatory taking.

Under Lucas, there is a regulatory taking if all economically benefical use has been

(deprived. The de~per still has a "historic" Victorian. Old homes typically have some value

(rentals, bed and breakfasts) so the developer will not have a claim under Lucas.

The court in ~en~-~en~~tation came up with a list of factors to determine whether the

"historic" designation of a building constitued a reglatory taking. The court will look at the

investment backed expectations, the nature of the government action, and the economic harm - ........ _,_~----------- ·-·~·---N __ , _________ , _____ _

of the reglation.

The developer may argue that he has lots of L!!.vesttl!~_nt ba~~~-~~xpect~_tio~ because

he has "promised" investors a larger return on money. This indcates that investors have already

given the developer money. The amount of money could be substantial based on the fact that

he alleges a 500,000 dollar loss. The City may aruge that the developer owned the home in the

historic district. This implies that the developer knew of the neighborhoods historic character

before the investments were sought. It may be difficult for him to have "expectations" if he

always knew the Victorian was historic.

The nature of the governemtn action is a designation of "historic" character on the

developer's prc)perty:.'Thi~-~;y·b~-~-~;1-~tl~~Y non-intrusive regulation. The city may have to

argue that there is a scheme to determining whether or not a house is historic, and whether or

not the character of the neighborhood was changed by the prposed development. If the city's

actions were arbirary or irrational in some way it may be more likely that there was a regulatory

taking.

Page 1 of 2


The alleged economic impact of the regulation will result in a loss of half a million

dollars.

tJ(C- The city will likely prevail because it is rational that chaning a Victorian (an antique

looking style of house) into 5 rental units (which could look industrial and modern) would in fact

change the character of the neighborhood.

Page 2 of 2

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MONTEREY COLLEGE OF LAW CONSTITUTIONAL … COLLEGE OF LAW CONSTITUTIONAL LAW MIDTERM EXAMINATION FALL 2010 MICHELLE A. WELSH, Professor EXAM …