Answers for Spring Break Exam Review Questions

Note: Some of the material is in the form of a grading sheet for the exam question and some is in the form of a model answer to the question and sometimes both are provided. In either case, these are “ideal” answers and even students who receive an “A” for their answer to a particular question would not get every single point which is allocated to a question.


Question One 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. Therefore, Congress can only regulate the decision to have cosmetic surgery if it can show that the decision has a substantial economic effect on interstate commerce. Moreover, the activity is noneconomic and therefore it must satisfy the stricter standard found in Lopez and Morrison.

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 in the case of 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. It can show that patients will not need to take time off from work because of unnecessary surgery, 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 of 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 Answer Sheet

Federal Cosmetic Surgery Protection Act (40 points)
Congress has power to reg local commerce when it has a subl eco effect on IC-cat 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)____
aggregate effect on IC or must challenger 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)____

Question Two Answer Sheet

Louisiana Food Misrepresentation Law (Catfish Labeling) (50 points)
preemption-valid federal labeling law?-is it a constitutional exercise of the commerce power?(4 pts)____
preemption - express permission to add labeling reqs, but not to confuse - which is this?(6)____
conflict-is it impossible to comply w/ both - Imported Catfish label complies with both?(6)____
conflict - undermines purpose of fed’l law? (what is federal purpose and does state law undermine it?)(5)____
occupation of field-did Congress intend to fully occupy the field?(4)____
dormant commerce clause - protectionism-evidence of lobbying, but state purpose(6)____
discrimination against interstate com-not on face, but in effect?,nondiscrim means?(6)____
benefit (do consumers benefit, don’t see package) vs. burden analysis(lost income)(8)____
no market participant exception since state is regulating(2)____
miscellaneous_____________________________________________________(3)____


Question Three Answer Sheet

Genetic Discrimination in Employment Act (50 points)
States-state autonomy (10th Amendmt)-no claim based on argument that burdens state employmt decisions-regulated along w/private employers-NLC overturned by Garcia(5 pts)____
state sov-like Printz-compelled to assist enforcemt of fed reg program-report violations(5)____
state sov-not like Printz-only required to provide info-feds enforce-reporting is dif(5)____
Employers-beyond power of Congress under Commerce Clause-category 3-local activity(4)____
economic or noneconomic activity?-employment relationship is eco activity vs discrim(5)____
Could Congress rationally conclude local activity in aggregate has subs eco effect on IC?(3)____
application to facts-reg all employers w/5 or more-no nexus to IC, in aggregate, motive(7)____
part of a class of activities or comprehensive regulatory scheme, or enterprise(3)____
N & P Clause-is it plaintly adapted to IC ends, necy to effective reg of IC itself, part of gen’l regulatory scheme(3)____
if Lopez-no jur elem,no findings on IC link, no aggregation, too attenuated, area of st reg(7)____
Miscellaneous_______________________________________________________(3)____

Question Four Answer Sheet
(Note: 4 points are allocated toward the bottom of the answer sheet to a DP/EP (Due Process/Equal Protection) analysis. These subjects are not covered in this set of review questions.)

Tow Truck Licensing Law (48 points)
Dormant Commerce Cl-applies to local ordinances (as well as state laws)(1 pt)____
Eco Protectionism-illegit purpose?, safety or prevent competition from out-of-staters?(4)____
Discrimination-facial (all must be licensed) vs in effect (burden on o-o-s, pass thru, etc.)(5)____
Strict test (if discrim)- legit local purpose? nondiscrim alt means?(4)____
Balancing test-Burdens-$, licensing even if “passing through” or tow only a few times(4)____
Benefits - safety (avoid tow truck “racing” accidents like the one that occurred), more than slight?(4)____
Preemption - valid fed’l law? commerce power?(3)____
Express preemption/nonpreemption provision - safety - is this safety?(4)____
If not express - implied?  - conflict - can’t comply with both? conflict in purpose?(4)____
Implied - Occupation of field? Is state or federal interest dominant? (presume preemption or no preemption?)(4)____
P and I-no discrim ag oos residents, everyone needs license (but if applies . . .)(4)____
DP/EP-eco rt, can towing law satisfy rational basis?-rationally related to legit purpose(4)____
Miscellaneous_________________________________________________________(3)____

Question Five Answer

Children’s Toys, Inc. (CTI) will first argue that the Small Parts Labeling Law is preempted by the provisions of the Federal Toy Safety Act.  The federal law is a valid exercise of the Commerce Clause because it is a prohibition on shipping toys in interstate commerce unless they comply with the labeling requirements of the Toy Safety Act (TSA).  The power to regulate interstate commerce itself falls within category one of the three Lopez categories and is plenary.  As a valid federal law, the TSA can preempt state laws.  The Toy Safety Act does not contain any express preemptive language so it is necessary to argue that the state law is impliedly preempted by the TSA.  CTI will first argue that there is a conflict between the state and federal law because the state law undermines the purpose of the federal law.  The federal law is intended to balance safety against the economic interests of toy manufacturers.  In the case of toys intended for children between 3 and 7, federal law specifically decided to identify a limited category of risks and those risks did not include the risks of choking on small parts by children under 3.  An amendment to expand the scope of the federal law to require a warning label for just such a risk was defeated.  Therefore, the operation of the state law would undermine the delicate balance between safety and economics that the TSA strikes.  In addition, CTI will argue that there is preemption by occupation of the field.  The field of product labeling of consumer products, including toys, that are shipped in interstate commerce is chiefly governed by federal law.  The federal law contains detailed provisions on labels to assure toy safety and Congress specifically rejected any expansion of those labeling provisions.  Therefore, a court should conclude that the federal government intended to fully occupy the field of toy safety labeling for toys made for children through the age of 7 and intended to preclude even state laws that furthered the same safety purpose as the federal law.

The State of Connecticut will argue that the state law is not preempted by the TSA.  First, it is possible to comply with both the state and the federal law at the same time since the federally mandated labels do not preclude a toy from including the additional warning required by state law.  Second, the operation of the state law does not undermine the federal purpose.  The federal purpose is child safety and the state purpose is also child safety.  The state law just adds an additional layer of safety protection and does not undermine the federal purpose. In addition, there is nothing to indicate that the federal government intended to fully occupy the field of toy safety.  The area of child safety is of mutual concern to both the states and the federal government.  A reasonable presumption is that the federal labeling law establishes a minimum level of protection and not a maximum level (a floor and not a ceiling) and that the states are free to impose stricter labeling requirements for toy safety than the federal government does in the absence of a clear statement in the federal statute that the federal standards are intended to be both a floor and a ceiling.  Finally, the fact that Congress did not adopt an amendment that would have expanded the mandatory labels to include a warning against choking of exactly the kind the state has adopted does not suggest a different outcome.  It is impossible to know why the federal amendment was defeated and the fact that the bill was considered indicates that Congress was aware that the federal law did not regulate every aspect of toy safety, leaving room for additional regulations by the state.   

As an alternative to the preemption argument, CTI will argue that the state law violates the dormant Commerce Clause.  First, CTI will argue that the stricter test (state must prove it has a legitimate state purpose and no nondiscriminatory means - means that don't discriminate against interest commerce - are available to accomplish that purpose) should apply because the state law discriminates against out-of-state commerce in its practical effect.  The law, like the North Carolina apple labeling law, has no adverse impact on Connecticut toy manufacturers, but will adversely effect out-of-state companies by requiring they add an additional warning label to some toys.  As a law that discriminates, even if it promotes the legitimate purpose of child safety, the state will still need to show that the state has no nondiscriminatory alternative means available to protect child safety.  Other means that do not require a change in labeling exist to protect children such as a campaign by the state to inform parents about the hazards of choking on small parts.

CTI will also argue that the state law is an example of economic protectionism because it was designed to protect Safe Toys, Inc. from out-of-state competition.  Safe Toys, Inc. was a strong supporter of the state law and the only manufacturer of toys for children between the ages of three and seven located in Connecticut. Most importantly, Safe Toys already labels its toys as required under state law so the new law will not have any adverse impact on Safe Toys but will adversely effect its out-of-state competitors. Means that are designed to protect the state's economic interests are illegitimate under the strict test and therefore the state would fail to satisfy the requirement of having a legitimate local purpose.

CTI will also argue that even if the balancing test applies, the burdens of the law on interstate commerce outweigh the safety benefits.  The law imposes additional costs on CTI and other toy companies that sell their products in Connecticut.  That economic burden is not offset by any safety benefit.  The state has not demonstrated that the warning label requirement it has adopted will alter the behavior of parents and save the lives of children. While the state heard testimony that choking on small parts is one of the leading causes of toy-related deaths in children under age three, it did not hear any testimony that warning labels reduce the number of such deaths.  Moreover, the state did not learn whether the cause of the choking deaths was the result of unlabeled toys intended for older children or toys with a warning label intended for children under 3.  It is not sufficient to assert such a safety benefit, the state must prove that parents pay attention to such labels when buying toys and it failed to do so.

The state will respond to the dormant Commerce Clause argument by asserting that the purpose of the law was child safety and not economic protectionism.  Before passing the law the state heard from medical experts that choking on small parts is one of the leading causes of toy-related deaths for children under 3.  This evidence makes clear that there is a genuine threat to child safety that the state responded to by enacting the law.  Moreover, the law does not discriminate against out-of-state commerce.  All toy manufacturers must comply with the law.  There is no exemption for Connecticut companies.  Even if the court finds that the law discriminates in its effect, there is no alternative means available that would be equally effective.  Warning labels are a standard means to warn consumers of the hazards of a consumer product.  Unlike the North Carolina labeling case, the state law does not require that a toy company remove any of its current labels, it only requires that it add one additional label.  This is not very burdensome.

Finally, if the court concludes the law does not discriminate against out-of-state commerce, it should also find that the benefits of the law outweigh the burdens on interstate commerce.  The economic burdens of an additional label are quite modest as compared to the likelihood that the additional label will save the lives of some children.

Question Five Answer Sheet

Small Parts Labeling Law (40 points)
preemption-identify issue(1 pt)____
valid fed'l law?-is law valid under power to regulate interstate commerce(4)____
express preemption by Fed Toy Safety Act?-does fed’l law expressly preempt state law?(2)____
conflict-is it impossible to comply with both fed and state law at the same time?(4)____
conflict in purpose-does the operation of the state law undermine the federal purpose?(4)____
occupation of the field-did Congress intend to fully occupy the field and which field?(4)____
dormant commerce clause–identify issue(1)____
strict test-discrim ag interstate commerce-no discrim on face of law, but is there discrim in effect?(4)____
legit state purpose and no nondiscriminatory means are available(4)
strict test-eco protectionism - was law designed to benefit a local toy company?(4)____
balancing test - burdens on interstate commerce vs. local benefits (more than slight?)(5)____
miscellaneous/special level of understanding___________________________________(3)____

Question Six Answer Sheet

Q III (excursion train residency discount) (25 points)
Privileges and Immunities Clause of Article IV- individual not corporation is suing(1 pt)____
discrim ag nonresidents (no discount)?-res vs. nonres or pt time vs full time residents(4)____
is it a right essential to interstate harmony?- recreational activity- not income producing(4)____
subst’l reason for discrim- residents contribute to taxes, but so do all prop’y owners(4)____
degree of discrim subst’ly related to sub’l reason-100 % discrim, but nonres property tax(4)____
are there less discrim alt means? - e.g. could grant partial discount to summer residents(4)____
no market participant exception available under P&I(1)____
miscellaneous_________________________________________________________(3)____

Question Seven Answer Sheet

Question II (Federal Single Sex Educational Opportunity Act)
1) Com Cl- cat 3, local activity, eco/noneco?, could Congress rationally conclude etc.(4 pts)____
Is education an economic or a noneconomic activity?(4)____
If eco-sub’l effect on IC in aggregate?(4)____
If noneco, Lopez factors, no jur element, no findings, attenuated link, trad’l st function?(8)____
2) Spending clause-grants to schools on condition-apply 4 part Doe test-gen’l welfare, unambiguous, rationally related to purpose of spending, independent const’l bar (EP violation?)(6)____

Question Eight

The farmer can challenge the law as a violation of the dormant Commerce Clause because it discriminates against out-of-state commerce by excluding the sale of fruits and vegetables grown in other states from participation in the Farmer’s Markets.  This restriction involves both discriminatory means as well as impermissible ends because it is an example of economic protectionism in that it seeks to preclude the sale of products grown in other states in order to promote the sale of products grown within the state.  As a program that discriminates against out-of-state commerce, the state must show that the restriction is designed to advance a legitimate local interest and that there are no nondiscriminatory alternative means available to advance that interest.  The restriction fails both prongs of the test.  The purpose of the law is the illegitimate one of economic protectionism and the means, an outright exclusion of products grown outside the state from participating in the state-sponsored Farmer’s Markets, are not the only means available to achieve the state's objective.  Instead of banning the sale of out-of-state fruits and vegetables entirely, the state could allow local farmers to label their products as locally grown and could promote the sale of such products, as it is doing, through its publicity campaign that encourages the buying of local produce through its “Support Your Local Farmer” campaign. This would encourage the buying of local products without excluding out-of-state products entirely from the Farmer's Markets.

The State of Midwest would defend its restriction by arguing that the state is a market participant and not a market regulator.  It is not regulating the fruit and vegetable market.  Private sellers of fruits and vegetables are free to sell products grown everywhere.  The state is only deciding what it wants to sell in the 3 Farmers Markets that it operates.  As a seller of fruits and vegetables, the state should be permitted to decide what it wants to sell.  This case does not involve a natural resource, international commerce or downstream activity.  The state is not trying to control what purchasers of fruits and vegetables at its markets do with the products they buy.  It is only seeking to control the goods that it sells in the market in which it participates (the sale of fruits and vegetables market).  Because the state gets the benefit of the market participant exception, it is free to discriminate against out-of-state products in order to protect local farmers.

The farmer challenging the restriction can also claim that his rights under the Privileges and Immunities Clause of Article IV have been violated.  He will argue that he satisfies the three threshold requirements because (1) he is a flesh and blood non-resident, (2) who has been discriminated against because he is an out-of-state farmer, and (3) he is being denied the right to pursue a lawful occupation (selling fruits and vegetables) by the State of Midwest, thus infringing on one of the privileges and immunities protected by the clause.

The state will argue in response that the state is not discriminating based on residency.  It is only discriminating based on the place where fruits and vegetables are grown.  If a nonresident of Midwest owns land in Midwest the nonresident would be able to sell fruits and vegetables grown on that land at the Farmer’s Markets.  Moreover, a resident of Midwest who owns farmland in Midsouth and grows produce on that land would not be able to sell the fruits and vegetables at the Midwest Farmer’s Markets.  Therefore the law does not discriminate based on residency.

The Midsouth farmer will respond to this argument by asserting that the practical effect of the law is to operate as a discrimination against out-of-state residents because the vast majority of farmers who own land in Midwest are residents of Midwest and very few residents of Midwest own farmland outside of Midwest.  

It addition, the state will argue that the right to sell fruits and vegetables at a market operated by the state is not a privilege and immunity of state citizenship because it only involves an exclusion  from the state’s own markets and not from private markets within the state.  It is similar to the distinction between government employment and private employment.  The Supreme Court has found that the right to hold a government job is not one of the privileges and immunities of state citizenship.  Similarly, the court should find that the right to sell fruits and vegetables at state-owned markets is not a privilege and immunity of state citizenship.

If the farmer succeeds in convincing the court to reach the merits of his privileges and immunities clause claim, the burden will shift to the state and the state will have to show(1) that it has a substantial reason for treating nonresidents differently (they are a peculiar source of the evil the state is trying to address) and (2) that the degree of discrimination against nonresidents bears a substantial relationship to the state’s objective.  The farmer will argue that the state cannot satisfy this intermediate scrutiny test because, even if promoting local farmers is a substantial state interest, the degree of discrimination (100 % discrimination because out of state farmers are completely excluded) is not substantially related to the state’s objective.  There are many less discriminatory alternatives that would promote local farmers while still allowing access by out-of-state growers.  For example, the state could subsidize Midwest farms and therefore allow them to sell their fruits and vegetables at lower prices giving them a significant market advantage over produce grown in other states or the state could both allow local growers to label their produce as locally grown and heavily promote buying from local farms while still allowing out-of-state produce to be sold at its Farmer’s Markets. Both of these alternative means involve a closer fit between the means and the state's ends and demonstrate that the total ban is not substantially related to the state's objective.

If the state fails to convince the court that it can satisfy the standard used under the Privileges and Immunities Clause of Article IV, it cannot depend on a market participant exception because, unlike the dormant Commerce Clause, there is no market participant exception to the Privileges and Immunities Clause.

(NOTE: There is one other minor issue in this question, but it is beyond that scope of what we have covered thus far.  The farmer could also challenge the law under the 14th Amendment Equal Protection Clause because it discriminates based on the location where the fruits and vegetables are grown and prefers locally grown produce over produce grown outside the state.  This form of discrimination is not based on a suspect classification and would only be subject to a rational basis review and the state would almost certainly be able to show that its restriction is rationally related to a legitimate state interest.  Therefore, the equal protection challenge would fail.)