Jamar Con Law I §2 Review Hypos 1

To: Constitutional Law I, Section 2

From:Prof. Steven D. Jamar
Re: Con Law I Review Hypotheticals
Date: March 10, 2009

Below are questions designed to allow you to assess your

understanding of the material to be covered in Con Law I. These hypos are
designed to give you a sense of the sort of questions you may face on the
exam. It is likely that one of the questions, or a question derived closely
from it, could be on the actual final exam. Please note that although we may
not cover all of these areas in depth, you will have had sufficient exposure to
the key cases and materials to apply the law and principles to these issues.
It is not uncommon on exams to be asked to extend the law you have been
studying into an area you have not yet explored.

1. Assume Congress passed a law that says: The Supreme Court is

prohibited from referring to or using or relying on international law or foreign
law in the consideration of or decision with respect to cases before it. The
Supreme Court subsequently decides a case (Roper v. Simmons (2005)) that
makes the death penalty for minors unconstitutional on the basis that it is
cruel and unusual punishment. The majority opinion refers to and relies
upon international standards declaring the death penalty a violation of
human rights and upon the nearly unanimous position of foreign states
banning the death penalty for minors.
In a later case Texas imposes the death penalty on a minor. Texas argues
that the Roper case is illegal because it was decided in violation of the
standards set by Congress for decision in the Supreme Court. The
defendant, Darcy argues that the Congressional statute is unconstitutional.
Decide the case explaining your reasoning fully.

2. Assume Congress passed a law that states that “No state shall ban the
marriage of two individuals on the basis of the gender.” Before passing the
law, Congress held many and lengthy hearings at which evidence of
widespread discrimination against gays and lesbian across the country was
shown including homosexual-targeted violence, prohibition of visiting lifelong
partners in hospitals (because they are not “relatives”), denial of rights and
economic benefits of the same type granted to married people of opposite
genders. The State of Missarkana passed a law banning gay and lesbian
marriages. In implementing the law, it refused to permit anyone in the State
of Missarkana to perform such marriages or civil unions. Furthermore,
Missarkana refused to recognize any marriage or civil union between two
people of the same sex which had been recognized in other states as valid in
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Missarkana.
You have been consulted by Mary and Jen, lesbian residents of Springfield,
Missarkana, who wish to marry. Please prepare a memorandum of law
assessing whether the Congressional enactment is a valid exercise of
Congressional power under section 5 of the 14th Amendment.

3. In exercising its enumerated power to provide copyright protection for

certain kinds of works like music, books, art, movies, and computer
programs, Congress passed a law that by its terms applied to legal persons
(including corporations) as well as to states and state subdivisions such as
cities and counties.
EduPix is a maker of a variety of audiovisual works including video games,
movies, music videos, as well as other sorts of works. These works are used
primarily in undergraduate programs and in professional or managerial
training programs.
EduPix has sued five defendants in federal court for infringing its copyrights
in the products. The defendants are: (1) the State of Delmarva; (2) the
Governor of the State of Delmarva; (3) the Board of Regents of the University
of the State of Delmarva; (4) the City of Seaport, Delmarva; and (5) Essent
University located in Seaport. The University of Delmarva is a state owned
public university (like the University of Maryland). It is not a political
subdivision, but rather is just an arm of the state government like the
Department of Motor Vehicles. Essent University is a not-for-profit private
university. All of the defendants are infringing the copyrights in the
software. There are no defenses on the merits.
a. Consider the application of the 11th Amendment as a defense for
any of these defendants.
b. What, if any, additional information would you need to know to
decide the issue with respect to any of the defendants?
Explain your reasoning fully.

4. Assume Congress has just passed a medical information and services

law with several provisions:
a. The first part of the law provides that all lawful residents of the
United States must have a MedID card on which the following
information is contained in electronic form: name, address,
phone, email; social security number; primary care physician
name, speciality, and contact information; insurance information;
medical history; and other medical information such as allergies,
immunizations, blood type, phenotype, national and ethnic
Jamar Con Law I §2 Review Hypos 3

information, and DNA information to the extent known, and the

like. The information must comply with a federally mandated
format so that all medical providers, including doctors, nurses,
medical technicians, paramedics, insurers, hospitals, clinics, etc.,
can access and update the information on the card.
b. The second part of the law requires that all private medical
providers, including doctors, nurses, medical technicians,
paramedics, insurers, hospitals, clinics, etc., register federally,
and that they all be equipped to use the MedID card for
treatment, billing, and reporting purposes.
c. The third part of the law requires all physicians and other
medical providers to report all of the services they provide to
everyone. The reports are to be done automatically at the end of
each week and are to be submitted electronically to a central
database where the medical records of each individual are kept
and updated.
d. The fourth part of the law provides that non-compliant physicians
and medical providers are ineligible to receive medicare or
medicaid payments for all patients for any month in which any
reporting on even one patient is insufficient.
e. The fifth part of the law provides that the central patient
information databank is open to researchers to do data mining,
to assess the effectiveness of treatments, and to design
individualized medical treatment regimes based on statistical
probabilities.
f. The sixth part of the law imposes all of the same requirements
on states and political subdivisions within states (e.g., counties
and cities) and conditions receipt of federal money for road
construction on compliance.
g. The seventh part of the law imposes a 1% service tax on all
medical services provided by everyone covered by the act. The
law also provides for a 50% reduction in that tax if certain
degree of compliance is met by the providers of medical
services. The revenues from the tax are earmarked for paying
for the system and for paying for medical research.
h. A non-governmental organization called SOOMB (Stay Out of My
Body) (pronounced soom(rhymes with soon)-be)), sues in federal
court on behalf of its members to avoid having to carry the
MedID and to stop the government from collecting that
information either from the SOOMB members themselves or from
insurers, hospitals, pharmacists, or other medical care providers.
Jamar Con Law I §2 Review Hypos 4

Evaluate all issues reasonably raised. Be sure to include a discussion of what

information you would need to gather to evaluate the claims more fully.

5. The President has expressly authorized the CIA and the Department of
Defense to send prisoners captured in the war in Afghanistan to other
countries for interrogation. The CIA, Department of Defense, and the
President all know that the interrogation techniques include methods that
would constitute abuse of prisoners under international law, under U.S.
criminal law, and under U.S. armed services military code regarding
treatment of prisoners.
A prisoner, Hamman, escaped and has sued the President, the head of the
CIA, and the Secretary of Defense in United States Federal District Court for
violating U.S. law making torture a crime, and for violating U.S. law regarding
treatment of prisoners including ratified treaties and constitutional
interpretation of the due process clause and the cruel and unusual
punishment clause. For this problem assume that all of these provisions
would be violated by the actions of the executive branch with respect to
Hamman.
i. The President asserts (1) that as Commander in Chief he can
authorize abuse and torture, and (2) that actions he takes as
Commander in Chief in the conduct of a war, in this case, the
war on terrorism, are not reviewable by the courts.
j. The head of the CIA and the Secretary of Defense defend on
the basis that the President authorized the actions and they are
protected by the President’s actions since they were just
following orders.
k. The President claims executive privilege and refuses to
disclose any memoranda or orders or directives relating to such
orders.
l. The head of the CIA and the Secretary of Defense refuse to
disclose any memoranda or orders or directives on the grounds
of national security and on the grounds that the executive
privilege of the President covers them.
Consider the defenses raised by three named parties to the action and
consider whether the claims of executive privilege would be upheld by the
courts on these facts. If your position is that additional information would be
needed to decide the issues relating to the assertion of executive privilege,
state what sorts of information you would need and why it would be relevant
to the determination.
Explain your reasoning fully.
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6. The Narina County in the State of Arkegon had fallen on hard economic
times with its industrial base having collapsed due to competition from
foreign textile goods. Because of the way the county had developed, there
were no large tracts of land that could be developed that would permit the
building of either big-box stores or outlet malls or a massive shopping mall.
The county was bisected by a major, heavily-traveled interstate highway,
and was only 30 minutes from one major metropolitan area and 70 minutes
from another. Furthermore, other than in those metropolitan areas, there
were no large shopping centers or big box stores, other than one Walmart
some 40 miles to the north in a fairly modest-sized town.
Narina County wants to acquire some property along the interstate in order
to permit construction of a large shopping area. The County planned to buy
as much of it as possible in regular negotiated transactions, which it did. But
a number of owners of key parcels refused to sell. Narina then decided to
condemn the remaining private property under its power of eminent domain.
Narina County had a contract with a developer to develop the land and build
the sort of shopping area it wanted. Under this contract, Narina County
would sell the land to the developer at cost, plus give tax incentives and tax
relief for the next 10 years. The developer is a private company.
The landowners who did not want to sell defended in the eminent domain
action by claiming that the taking was unconstitutional because it was not
for a proper public purpose. The landowners contended that taking private
property and then transferring it to other private persons is not authorized.
The landowners argue that “public good” limits the taking of property to be
used for things like public buildings and roads.
The County accurately argues that under the Arkegon Constitution, this sort
of taking for commercial development by private parties is explicitly
authorized.
Who wins, and why?

7. Assume Congress passes a law that provides that garden centers in

the United States cannot sell any flower or other decorative or landscaping
plant that is not indigenous to that area. Consider the validity of this statute
under the Interstate Commerce Clause.

8. The State of Michinois is located on a major east-west transportation

corridor and has a huge amount of commercial rail and truck traffic pass
through it. Like every other state, Michinois taxes commercial trucks hauling
goods on the basis of the size of the truck and the weight of the load.
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However, two months ago Michinois increased the amount of the tax to 5
times the rate it was before. This put Michinois’ commercial truck tax rate at
4 times the next highest rate set by any state. TallTruck Hauling, Inc., sued
in federal court bringing a declaratory judgment action to have the tax
increase set aside on the grounds that it constitutes an unconstitutional
burden on interstate trucking. Consider the issue. Also, identify what
additional sorts of information you would want to investigate that might have
an effect on the outcome of the case.

9. Assume Congress passes a law granting all gun manufacturers

immunity from liability for state causes of action including negligence and
products liability. Is this a valid exercise of the interstate commerce power
of Congress?

10. A state court issues a restraining order that requires police to arrest a
father if he approaches within 100 feet of his minor children. The father
picks up the children after school and takes them to an amusement park.
Rather than returning them to their mother, he kills them. The mother sues
the police department for failure to enforce the restraining order. She had
discovered where he was and where the children were well before they left
the amusement park.
The police and the city assert that they have sovereign immunity from suit
for the official police acts.
The mother claims that the executive failure to enforce the legitimate court
order must be held to waive immunity in order to protect the respective
powers of the court.
The city claims that the contempt power of the court is sufficient
enforcement and that liability suits ought not be allowed.
Construct a Constitutional argument that the city is not immune.

11. Assume the State of Califegon as a state activity grows marijuana for
research purposes and for medical treatment when prescribed by a
physician. All of the marijuana is to be used only within Califegon and in fact
all of it is. None is allowed to be exported and none is sent through the mail
to anyone.
Under federal law marijuana is a controlled substance and accordingly the
production, consumption, sale, and possession of it are all illegal.
Does the action of the State of Califegon violate the interstate commerce
clause?
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12. Ima N. Ventor has a patent on a diagnostic device used in almost every
hospital in the country because of its combination of relatively low cost, ease
of use, and accuracy of diagnosis. Her patent right arises exclusively under
the patent law enacted by Congress.
Ventor receives royalties from all users of the device, except for some
reason hospitals owned by states, state universities, and cities and counties
do not, in the main, pay royalties for them.
So, she decides to sue. First she sues the State of Marsylvania, the
Marsylvania State University (owned and run by the state), the Marsylvania
State University Hospital (owned and run by the state university), and the
City Hospital of Pennapolis (the capitol City of Marsylvania). The City
Hospital of Pennapolis is owned and run by the city government itself.
She also sues the chief radiologist at each hospital. The diagnostic device is
operated primarily by hospital radiologists.
She is suing for damages for past royalties which have not been paid for the
past three years, for future royalties, and for an injunction against the
hospitals and the radiologists against future use unless they are licensed to
use it.
While the suit is pending Congress amends the patent act to provide as
follows: “State sovereign immunity is abrogated with respect to any claims
that would arise under this Patent Act.” Congress held hearings about
rampant patent violations by state-owned hospitals around the country.
Consider all constitutional issues reasonably raised by the facts.

13. Assume Congress passes a law that provides:

101. Torture is illegal. All officers, officials, or persons or person
acting as an agent of the United States are prohibited from torturing
anyone, anywhere, at any time, under any circumstances.
102. Torture means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. Waterboarding in
all of its versions is explicitly forbidden. It does not include pain or
suffering arising only from, inherent in, or incidental to lawful
sanctions.
Jamar Con Law I §2 Review Hypos 8

103. Anyone violating this law is civilly liable to anyone harmed thereby.
The President vetoes the law.
Jonah Jones, not a United States citizen or resident, is taken into custody by
United States officials acting in their official capacity pursuant to a
Presidential finding, removed to a secret prison not on U.S. soil or on land
leased by or otherwise under the official control of the U.S. government, and
interrogated. During the interrogation, Jones is subjected to waterboarding
and various other forms of deprivation and painful physical and emotional
and psychological suffering in an attempt to coerce information from him.
Jones was suspected of aiding terrorists in planning to attempt to destroy the
Golden Gate Bridge in San Francisco, the Brooklyn Bridge in New York, and
the Poplar Street Bridge (the I-70 bridge across the Mississippi River between
Illinois and Missouri).
Jones is ultimately released without being charged with any crime. He
makes his way to the United States, hires and attorney, and sues the United
States, the President, and various John Does (because he did not know the
identity of his captors or torturers by name) to hold them civilly liable for
violating the torture statute under §103.
Consider all defenses of the defendants.

14. Assume Congress passes a bill and the President signs it into law that
provides:
201. Federal Court Jurisdiction. The United States Federal Courts do
not have jurisdiction over any habeas corpus actions that may be
brought by or on behalf of any non-United States national who is not
imprisoned within the United States. All deliberations concerning such
persons are to be conducted exclusively by a military tribunal set up
pursuant to §202 below with no appeal or recourse to any federal
Article III court.
Consider the constitutionality of this law.

15.
a. Congress passes a law that provides that any state that (1)
adopts and implements steps to encourage native plants and
that (2) attempts to eradicate or limit invasive and destructive
species will receive matching federal grants for such programs in
the amount of up to $1 billion dollars per year for the next 5
years. The State of Carolginia adopts an ambitious project to
eradicate certain particularly invasive vines that are killing
forests and ruining the natural habitat for native species of
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animals. When Carolginia applies for the matching funds of $800

million dollars, the federal government refuses the matching
funds because Carolginia, it says, only did part (2).
What, if any, recourse does Carolginia have?
b. Assume Carolginia has implemented a program that is fully
compliant with the federal standards for receiving the grant. T.
Ribble has made a living selling various non-native, exotic
species for landscaping. The new Carolginia law will put him out
of business. He wants to sue the state, the state department of
natural resources (DNR), the secretary of the DNR (Nat R.
Sorces), the federal government, the federal department of the
interior, and the secretary of the interior (Pay M. Bak).
Advise Ribble as to the constitutional issues relating to his suit.
c. Assume that Carolginia has not applied for federal funds and has
not implemented any pro-native species program. Now the
Native Plants Advocacy Group (NPAG) wants to sue to force
Carolginia to do something. Consider the constitutional issues
concerning its possible lawsuit.
d. Assume the same facts as in B, but assume now that Small
Government Interest Group Inc (SGIGI) wants to sue to stop
Carolginia. Can it?

16. Assume that Congress has been lobbied to pass the following law:
101. In order to obtain a permit to hunt on federal lands, a
hunter must first pass a federal hunting safety course related to
the type of hunting the hunter wants to do, must pay for the
safety course, and must pay for a federal permit to hunt.
201. In order to obtain a permit to hunt on any state or state
political subdivision lands, a hunter must first pass a federal
hunting safety course related to the type of hunting the hunter
wants to do, must pay for the safety course, and must pay for a
federal permit to hunt.
301. In order to obtain a permit to hunt on any privately-owned
lands, a hunter must first pass a federal hunting safety course
related to the type of hunting the hunter wants to do, must pay
for the safety course, and must pay for a federal permit to hunt.
You are a staff attorney for the House Interior Committee and have been
assigned to evaluate this proposal from the Constitutional perspective.