Download. Full text after the jump. Please note that Question # 7 should end with "is valid"--discuss the validity of the proposed provision.
Constitutional Law
Final Examination
Professor Howard Wasserman
FIU College of Law
Fall 2020
Final Examination
Format:
This Final Examination will be administered over 48 hours, from 9 a.m. Wednesday, December 2 to 9 a.m. Friday, December 4. You can download the exam from the blog (fiuconlaw.blogspot.com) at 9 a.m. Wednesday; it must be returned by uploading to the Constitutional Law-C TWEN page by 9 a.m. Friday.
The exam consists of thirteen (13) Short-Answer Questions, worth ten (10) points each. The exam will be worth 130 points towards your final grade.
You have 48 hours to work on the exam. You may use as much or as little of that period as you wish, in whatever combination of periods you wish. You will not, and cannot possibly, work on it for the 48-hour period, and there is no need to try.
Please write your answer in Word, if you have it. The first page of your answer should be a cover page containing your Blind ID #; begin your answers on the second page. Please title your document with just your Blind ID # and the name of the class (e.g., “4000 Con Law.docx” or whatever).
A Note on the Hypotheticals:
The questions derive from five situations, as marked. For each, the introductory paragraphs present the basic factual, background, and procedural situation; those facts apply to every question. Subsequent questions amay dd additional facts or issues relevant to the issue in that question and in subsequent questions. Once some fact or piece of information is introduced, it can be used for all subsequent questions—that is, later questions may require that you refer back to earlier information.
Questions are in bold. All facts and information necessary to answer a question have appeared before that question. Any new information appearing after a question is for the next question and any subsequent questions.
Some questions involve abstract legal questions, while others require application of particular facts. All necessary facts are provided; if some fact is not provided, that means it is not necessary to the analysis. You may draw appropriate conclusions and inferences from the absence of a fact. Do not assume facts and do not fight the facts you are given. Applicable substantive law also has been provided and should be used for your analysis where appropriate.
Read the questions carefully. Answer only the question asked. The questions and issues to be drawn out of each question are straightforward. Do not look for tricks or hidden balls. Most questions are discrete, narrow, and precise, asking you to resolve a specific question or issue. The questions likely do not require you to scroll through multiple issues or possible rules. Any rule or issue you introduce or mention should be analyzed and applied to the facts in detail. Do not mention a rule in passing as a conclusion.
Approaching Short-Answer Questions
You may write up to 250 words on each question. That is an intentionally wide figure to give you maximum room to write, although you probably will not (and should not need to) write that much on many questions. Do not feel that you must write to the limit on every question; if you can give a complete answer in fewer words, do so. Save your words. Avoid throat clearing. (“The issue is” “As the Court, I would find . . .” “The defendant will argue . . .”). Jump right into your answer. When asked to be a party or the court, do not begin with “the party is likely to argue” or “the court is likely to find.” You are the party or the court, so just argue or find. If asked to reach a conclusion, do so. Do not italicize or bold or underline words you want the reader to see; the reader can figure it out.
Answer each question in a separate paragraph, clearly identifying the question being answered at the start (write the question number in bold above the paragraph--e.g., Question 1). In a parenthetical at the end of each answer, you must state the number of words in that answer. For those taking the exam by computer, you can do this by highlighting the paragraph and doing “word count” for the highlighted portion. For those handwriting the exam, you need to count the words. Each answer that does not include a word count will lose one point.
Each answer should be concise, brief, and direct. A good answer will identify and briefly state the applicable legal rule (or relevant portion of the applicable rule) and apply it to the facts at hand, if any, to produce a conclusion with a short explanation. Begin with the relevant constitutional texts and cases interpreting and elaborating on the text to establish the legal standard. Do not simply recite legal conclusions or conclusions in the case; explain it, applying the facts you have. Do not recite a legal principle without providing its source, but do not simply cite a rule by number without explaining its content. State the rule, explain it, and apply it to the facts that you are given. Answer only the question asked. It is enough to cite a case by the common single name of case (e.g., Marbury).
You cannot write a full and complete CREAC in this short space, so do not try. You can provide a very brief conclusion at the beginning or end. But use the bulk of space on the Rule, Explanation, and Application/Analysis, in which you are more than conclusory and you get into facts and details.
Materials:
You may use any and all assigned materials from the class, including the Constitution and both books, as well as anything posted to the Blog. You may use any original notes, outlines, or other study document that you were at least 25% responsible for creating (i.e., a communal outline created by a study group). You may not bring to the exam or use commercial outlines, supplements, or other materials and books that were not assigned as part of the class.
Academic Policies and Rules
This examination is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies, reprinted in the College of Law Student Handbook. Students are expected to be familiar with and to conduct themselves in accordance with those policies and regulations.
Good luck.
Questions ## 1-6: Make America Safe and Kind In Total (MASK IT) Act
Although a widely available vaccine for COVID-19 is on the way, Congress decides that a federal mask mandate is necessary to handle the “second wave” spread that began in November.
You are a legislative staffer charged with evaluating the constitutional validity of several options for the Make America Safe and Kind In Total (MASK IT) Act of 2020. For each of the following versions of the Act, discuss whether it is within Congress’s power to enact the basic regulation. (Where additional information is necessary to understand the proposal, it is provided).
1) Version I:
Any person shall wear a mark or other material face covering over the mouth and nose while outside the home.
2) Version II:
Any person who enters any business or any place of public accommodation that engages in interstate commerce, or that uses goods shipped in interstate commerce, shall wear a mask or other material face covering over the mouth and nose while within that business or place of public accommodation (including entrances, exits, outdoor areas, and while waiting in line on adjoining sidewalks).
3) Version III:
Any person who owns or operates a business or place of public accommodation that engages in interstate commerce, or that uses goods shipped in interstate commerce, shall establish and enforce a rule requiring that employees, patrons, and other persons within the business or place of public accommodation wear masks or other material face coverings over the mouth and nose.
4) Version IV:
Any person who uses any facility of interstate commerce for travel, whether privately or publicly owned (including, but not limited to, car, motorcycle, taxi, limousine, ride-share car (including, but not limited to, Lyft and Uber), bus, subway or other railroad, light rail, boat, or plane) shall wear a mask or other material face covering over the mouth and nose during the entire period of travel.
5) Version V:
Every State shall enact, through constitutionally appropriate processes, a law providing that any person shall wear a mark or other material face covering over the mouth and nose while outside the home.
6) Version VI:
Every state, municipality, or other governmental entity that receives funds from the Department of Health & Human Services (“HHS”) Public Health Emergency Program (“PHEP”) shall enact, through constitutionally appropriate processes, a law providing that any person shall wear a mark or other material face covering over the mouth and nose while outside the home. Failure to comply with this requirement shall result in loss of 7.5 % of the entity’s PHEP funds for 2021.
For purposes Question # 6, the PHEP is a longstanding federal program under which HHS provides annual money to state and local governments to handle public-health matters. PHEP funds go towards things such as education programs, purchase of medical equipment, and vaccination programs. PHEP funds comprise between 8 % and 11 % of annual budgets for state governments and between 5 % and 7 % of annual budgets for local governments.
Question # 7: Compensating Ourselves for Vaccinations in a Democracy (COVID) Act
Congress is considering the Compensating Ourselves for Vaccinations in a Democracy (COVID) Act of 2020, a law making available a COVID-19 vaccine, to be distributed through hospitals and pharmacies. Under a proposed provision, the vaccine will available free of charge for U.S. citizens, lawful permanent residents (those with Green Cards), and all persons lawfully residing in the United States for more than two years. All other persons must pay a $ 75 co-pay at the time of vaccination.
The member of Congress who proposed this provision identifies two interests. First, it saves money, by limiting the number of vaccines the government must pay for and recouping some costs by receiving payments from some people who receive the vaccine. Second, it limits a scarce resource to those with a sufficient connection and allegiance to the United States and not a foreign nation (that may be undertaking its own efforts to make a vaccination available.
You are a legislative staffer charged with evaluating the constitutional validity of the COVID Act.
7) Discuss whether the proposed provision regarding payments for the vaccine is valid.
Questions # 8-10: Emmett Till Antilynching Act
Congress has considered, but failed to pass, anti-lynching legislation since the 1920s. Although three bills have passed the House of Representatives over the years and seven Presidents have urged and supported congressional action, none has become law.
The latest version is the Emmett Till Antilynching Act, now pending in the House.
Legislative findings describe lynching as having “succeeded slavery as the ultimate expression of racism in the United States following Reconstruction.” It cites statistics showing that more than 4,700 people, predominantly African Americans, were lynched across 46 states between 1882 and 1968, with only 1 % of perpetrators punished by State or local officials. Lynching was widely acknowledged as a common practice in the U.S. through the middle of the 20th century.
The final finding is as follows:
Lynching was a pernicious and pervasive tool that was used to interfere with multiple aspects of life—including the exercise of Federally protected rights, housing rights, the free exercise of religion, equal protection of laws, travel, employment, participation in commerce and markets, and participation in federally funded programs. Interference with these rights was often effectuated by multiple offenders and groups, rather than isolated individuals. Therefore, prohibiting conspiracies to violate each of these rights recognizes the unique and horrific history of lynching in the United States and serves to prohibit its use in the future.
The substantive portion of the bill defines and sets the punishment for the crime:
Whoever conspires with another person to violate through violence [identified provisions of federal law covering racially motivated crimes, damage to religious property, equal rights, and exercise of federally protected rights] shall be punished in the same manner as a completed violation [of those provisions].
You are a legislative staffer charged with evaluating the constitutional validity of the Act.
8) Discuss whether the Act is valid as an exercise of power under the Interstate Commerce Clause, Art. I, § 8, cl.2.
9) Discuss whether the Act is valid as an exercise of power under § 2 of the Thirteenth Amendment.
10) Discuss whether the Act is valid as an exercise of power under § 5 of the Fourteenth Amendment.
Question # 11: Kevin Deese and John Doe v. Secretary of Defense
A federal statute provides that commissioned officers in the military must be “physically qualified for active service.” The Department of Defense (DoD), United States Navy, and United States Air Force have promulgated regulations implementing that law. (For these purposes, regulations implementing an Act of Congress have the same force and effect as a congressional enactment and are part of federal law).
One DoD regulation provides that individuals who have tested positive for HIV may not be commissioned as officers. A second DoD regulation provides that active-duty service members diagnosed with HIV after enlisting will not be discharged if they are otherwise able to perform the duties and responsibilities of service.
The Navy and Air Force screen cadets during their final year and prior to receiving their commissions as officers. A cadet who tests positive is separated from the Academy and discharged. The superintendent of the Academy may delay separation to the end of the academic year and allow the cadet to graduate without commission; the cadet is then honorably discharged.
Kevin Deese, a Naval Academy cadet, tested HIV-positive several months prior to graduation, although he is otherwise healthy and able to perform the duties and responsibilities of service. Deese was allowed to graduate, then was honorably discharged pursuant to applicable regulations. John Doe, an Air Force Academy cadet (he was given permission to litigate anonymously), tested HIV-positive several months prior to graduation, although he is otherwise healthy and able to perform the duties and responsibilities of service. Doe was allowed to graduate, then was honorably discharged pursuant to applicable regulations.
Deese and Doe have sued in federal district court, challenging their respective discharges and the validity of the regulations under which they were discharged. Among their claims is that the regulations prohibiting commissioning of new HIV-positive officers, without regard to their ability to perform the duties and responsibilities of service, violates the Fifth Amendment’s equal protection component.
11) For the court, decide whether the regulations are valid under the Fifth Amendment.
Question ## 12-13: Whole Women’s Health v. Attorney General of the State of Texas
Texas has enacted the Dismemberment Abortion Prohibition Act of 2020. It provides as follows:
§ 1: A person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency
§ 2: If a dismemberment abortion is deemed necessary in a medical emergency, the person performing the dismemberment abortion must take steps to ensure fetal demise in utero and prior to initiation of the dismemberment abortion.
§ 3: Definitions:
(a) Dismemberment Abortion: An abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of a the unborn child’s body to cut or rip the piece from the body.
(b) Fetal Demise in utero: The death of an unborn fetus, occurring while in the uterus and before all or part is removed through the cervical opening.
(c) Medical Emergency: Any life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.
Although “dismemberment abortion” is not a medically recognized concept, the statutory definition of the procedure describes a “Dilation & Evacuation” (D&E), a well-established medical procedure and the most common procedure used for abortions performed after 15 weeks of gestation (during the second trimester of pregnancy). In a D&E (what the statute calls a dismemberment abortion), the medical provider 1) dilates the pregnant woman’s cervix, then 2) uses a combination of medical instruments to remove the fetus through the dilated opening. Because a 15-week fetus is larger than the dilated cervical opening, the fetal tissue separates during the procedure, causing fetal demise.
Compliance with § 2 requires an additional and invasive medical step—injection, through the cervix, to cause the demise of the in utero fetus. That additional step is not part of the medically established D&E procedure, is not medically necessary to protect the life or health of the mother, and would not be performed but for the obligations of § 2. The state legislature found that a fetus would feel pain during the D&E process, so it is more humane and more consistent with the state’s commitment to human life to cause fetal demise painlessly, in utero, prior to the procedure.
Whole Women’s Health (“WWH”), a clinic providing reproductive-health services including abortions, files suit in federal district court, seeking to enjoin enforcement of the provision requiring in utero fetal demise. WWH sues on behalf of its patients and argues that the law violates the 14th Amendment.
12) For WWH, argue the controlling legal standard and the invalidity of the law.
13) For the government of Texas, argue the controlling standard and the validity of the law.
End of exam. End of Con Law. (Almost) end of Fall Semester. Thank you for an enjoyable class.
Good luck on the remainder of your exams.
Remember Benjamin Franklin. And thanks for listening.
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