Current Constitutional Issues (Ideas for Test prompts) Forum

[09042014]

My prof, and I'm sure many prof's, like to give exams that talk about a currently unresolved constitutional issue. Anyone want to brainstorm about current controversies?

Health Care
Gay Rights
Libya bombing

Any others?

[SaintClarence27]

Those are the three that my group has come up with. Our ConLaw prof always uses current issues, and has hinted that it's one of those three, with a strong possibility of gay marriage.

[DaydreamBeliever]

Arizona's Immigration issue?

[SaintClarence27]

We had to read a case on the individual mandate, so I doubt ours will be on that, but if he did that, it would be tweaked. The Arizona immigration law thing is a good guess too.

[ChattTNdt]

In past years, my prof has done this consistently- except generally he uses cases that are already pending the court's decision. I have a feeling we might see Bond v. US, (09-1227) involving standing, 10th amendment, and treaty power.

Gay marriage is also a likely topic

[09042014]

I like the immigration and Bond case ideas.

Thanks guys.

[DaydreamBeliever]

We had to read a case on the individual mandate, so I doubt ours will be on that, but if he did that, it would be tweaked. The Arizona immigration law thing is a good guess too.

Can you provide us with the citation that you read and any possible notes from class?

[patrickd139]

Congress uses the Commerce Clause to ban gay marriage. Constitutional? (<---My first law school essay question, worth 40% of my grade for the course.)

[09042014]

Congress uses the Commerce Clause to ban gay marriage. Constitutional? (<---My first law school essay question, worth 40% of my grade for the course.)

Issue 1) Is marriage an economic activity in and of itself? This has an effect on lopez prong 3.

Epic question.

[patrickd139]

Congress uses the Commerce Clause to ban gay marriage. Constitutional? (<---My first law school essay question, worth 40% of my grade for the course.)

Issue 1) Is marriage an economic activity in and of itself? This has an effect on lopez prong 3.

Epic question.

The epicness of the question was indeed in its vagueness. I structured it as a facial challenge, so on the part of the government, tying marriage to economic activity is easy enough (think Vegas weddings). From there it was on to balancing.

[vanwinkle]

Just about any "Congress forces the states to X" question is good stuff. Maybe high-speed rail as an example. Congress threatens to withhold 50% of current transportation funding from states unless they start building interstate high-speed rail networks. Can they?

[patrickd139]

Are you covering justiciability and the entire Bill of Rights?

[SaintClarence27]

We had to read a case on the individual mandate, so I doubt ours will be on that, but if he did that, it would be tweaked. The Arizona immigration law thing is a good guess too.

Can you provide us with the citation that you read and any possible notes from class?

I don't take class notes, but the case is actually pretty self-explanatory.

The crux of the case centered on the Constitutionality of the individual mandate, which, beginning in 2014, will require everyone (with certain stated exceptions) to buy federally-approved health insurance or pay a monetary “penalty.”

Florida ex rel. Bondi v. U.S. Dept. of Health & Human Services, 3:10-CV-91-RV/EMT, 2011 WL 723117 (N.D. Fla. Mar. 3, 2011).

[09042014]

Are you covering justiciability and the entire Bill of Rights?

justiciability yes, entire BOR not really.

[patrickd139]

Are you covering justiciability and the entire Bill of Rights?

justiciability yes, entire BOR not really.

I've got some justiciability questions if you want to PM me your email.

[uci2013]

We were given a hint about pension reforms - states trying to end or reduce pensions to government employees.

[soaponarope]

Just about any "Congress forces the states to X" question is good stuff. Maybe high-speed rail as an example. Congress threatens to withhold 50% of current transportation funding from states unless they start building interstate high-speed rail networks. Can they?

That is a good question. Congress may not compel States to adopt federal regulatory programs. They can provide incentives, encouragement... but, no coercing (see New York v. United States; Printz. v. United States). But in your scenario, I believe that the threat would be constitutional. The States are left with a choice. Either 1) build the rail and receive the money, or 2) opt not to build the rails and forgo the money. Unlike the take title provision in New York; where the States only choices were 1) adopt the Federal Regulatory program or 2) take title to the waste, i.e. both choices being unconstitutional, Congress has unambiguously posed the requirements to receive the federal funds left with alternative choices that are constitutional. That is, to forgo federal funding. This seems like a misnomer insomuch as if the States are in dire needs of the money... what choice do they have? Nonetheless, the hypo is no different from Congress saying "if you want highway funding then your drinking age must be 21, otherwise, you receive no funds." Which is constitutional.

I could be wrong. This is just my two cents.

[YourCaptain]

Couple of questions -

Arizona immigration statute: I would assume field preemption, but isn't there a very strong argument for a unique state interest?

Can someone explain the constitutionality of an administrative agency to me? I don't understand how they can make regulations, execute laws, and adjudicate violations of their laws without serious issue (thinking of the concurrence in the Congressional veto case)

Finally, the N&P clause - what does it do, precisely? Some say it's not a power unto itself, but then my professor hinted that Congress could use it to execute laws.

Have some good justiciability issues if anyone wants to pm and bounce ideas around.

[Borhas]

I doubt immigration would be on an exam... seems like way too one sided of an area of con law... though of course there're always grey areas


I bet most exams have two essays, one separation of powers problem (non-justiciability, appointment powers, executive privilege, delegation power etc) and one federalism problem (dormant commerce clause, Tax & spending as coercion, interstate commerce, Reconstruction Amendment enforcement)...

It's also a good idea to figure out what your profs role in the legal world was before she started teaching... Our prof worked in the interior department, so he's particularly big on the executive branch issues, especially environmental regulation issues.

[Bumi]

Any idea which blogs your prof reads? Volokh Conspiracy's been talking a lot about Koran Burning lately. Also the case about states suing utilities for climate change. Also vibrators. I'd prep for all three.

[soaponarope]

Couple of questions -

Arizona immigration statute: I would assume field preemption, but isn't there a very strong argument for a unique state interest?

1). Congress has the planarity authority to regulate immigration. Therefore, Congress regulation of "aliens" is subject to rational basis. However, if a State denies "to any person within its jurisdiction the equal protection of the laws" they may be subject to strict scrutiny. Because the Constitution does not give the States any enumerated right to regulate immigration, the power is reserved to the federal government (as you noted with field preemption). The problem with the Arizona State law the under-inclusiveness and over-inclusiveness of the law (not to mention due process). The law does not target other illegal aliens (Italians, Germans, Asians, etc...) and is therefore under-inclusive. On the other hand, Arizona has a compelling state interest (safety, health, etc...) to promote the general welfare. However, their law's classification on it's face is based on aliens (a suspect classification), plus the discriminatory intent and disproportional impact targeted at a discrete and insular minority (race-Mexicans). Moreover, the fact Arizona is trying to regulate alienage (Congressional power) will always be subject to strict scrutiny. The only time a State may discriminate against an alien and be subjected to rational basis is the public functions doctrine, i.e. when an alien applies for a governmental job and that has broad policy implications. The bottom line: because the law does not meet the 2nd prong of strict strict scrutiny(narrowly tailored), i.e. discriminated against legal aliens as well illegal aliens, and because the law is under-inclusive, the State law is unconstitutional.

Can someone explain the constitutionality of an administrative agency to me? I don't understand how they can make regulations, execute laws, and adjudicate violations of their laws without serious issue (thinking of the concurrence in the Congressional veto case)

#2. Congress may delegate their legislative powers to an articulable or intelligible principle that is narrowly tailored. For example, Congress may not delegate ALL of their authority, i.e. and say President, you make all the laws. Such a delegation of power would not be narrowly tailored. However, Congress has broad powers to promote the general welfare, tax, etc... combined with article 1 sec 8, clause 18- under the necessary and proper clause. for example, congress has the power to tax. Thus, in order to function effectively Congress created the IRS and delegated to them the power to tax, make laws, and ajudicate violations because it is necessary and proper for them to properly function. The delegation is to an articulable principle, i.e. the IRS deals solely with TAX.

Finally, the N&P clause - what does it do, precisely? Some say it's not a power unto itself, but then my professor hinted that Congress could use it to execute laws.[/quote]

This is the best way to think about this enumerated power (from Chemmy). Congress has the planarity authority to raise armies. If Congress held a bake sale to raise money to supply the army would that be constitutional? No where in the Constitution does it say Congress can have a bake sale to raise an army, however, it is necessary and proper for them to do so. Thus, when faced with a problem with a Congressional law, you state Congresses enumerated power which they relied on, and make the argument that it is necessary and proper. The tension, however, is b/w the N&P clause and the 10th amendment. Such tension fluctuates with the makeup of the court. If the law in question impermissibly interferes with a State right then it may fail N&P. That is a judgment call. Make the argument for both sides...

Have some good justiciability issues if anyone wants to pm and bounce ideas around.[/quote]

[pretzel]

Not sure if this would be considered a "current" topic anymore - and maybe the only reason we focused so much on it is just because of my Prof's background - but I think we're going to have a question addressing Executive Power and the suspension of Habeus Corpus to detain beligerents in the war on terror. See: Hamdi and Hamdan

[Cupidity]

http://www.npr.org/2011/04/19/135548311 ... hange-suit

The recent climate change case headed to the supreme court. It has elements of standing, delegation, federalism, statutory interpretation.

[xyzbca]

Last semester my con law professor used San Francisco's attempted ban on happy meal toys and he set up a hypo where a state banned the use of the new x-ray body scanners that TSA is using.

[examplepdf]

thought I would bump this thread now that more people have had their spring exams -- care to give those of us still waiting any more-informed ideas?

also just looking for good ideas for my study group to work through tomorrow for practice.