Constitutional Law I

Fall 1994

Professor Paul Salamanca

Final Exam: 3 hours

Sample Answer

Note: This is only a sample answer. It was written under test conditions by a student, and it has only been edited lightly. Valid answers could vary significantly from what is set forth here.

I

Note: This question was written before the Supreme Court's decision in Clinton v. City of New York, 118 S.Ct. 2091 (1998). The controlling effect of that decision would now make this question so straightforward that it probably would not be used on a final exam.

II

Note: This question includes a series of facts that implicate the Contracts Clause of Article 1, § 10, cl. 1, of the Constitution. That clause is not part of Con. Law I. In answering this question, as in answering all questions on a final exam, you should confine your discussion to material presented in the course.

Sample answer: The district court would likely find the law unconstitutional, on the grounds that it violates the Privileges and Immunities Clause of Art. IV, § 2, cl. 2. The law would not violate the Dormant Commerce Clause.

There are two pertinent cases that indicate the unconstitutionality of the law under the Privileges and Immunities Clause. Hicklin v. Orbeck concerned Alaska's requirement that contractors hire a certain percentage of in-state labor on construction projects. Camden involved a provision that discriminated in favor of local workers on municipal construction projects. In Hicklin, the Supreme Court struck down the Alaska statute on the grounds that the state had failed to show that outsiders were a peculiar source of Alaska's high unemployment. In Camden, the Court remanded the case to the Supreme Court of New Jersey for further consideration. These decisions indicate two areas of examination: (1) Is the restriction closely related to a substantial state interest? (2) What burden is being imposed, or is there a less restrictive means?

Both Hicklin and Camden found that unemployment, while it is a serious social problem, is not automatically enough of a problem to represent a substantial state interest for the purposes of the Privileges and Immunities Clause. [Note: The student should have elaborated on this point. For example, the student should have discussed whether the legislative findings in the act would suffice to justify the discrimination.] One way to justify discriminating against outsiders would be to adopt a valid requirement for local knowledge. This sort of requirement might be valid for emergency workers, where response time is critical. The response time of construction workers is not nearly as critical.

Second, the court will look at the burden being imposed. In this case, the burden is very heavy. Workers with skills in common callings, the construction trades, are being denied work merely because of their citizenship. [Note: The student should have referred more explicitly to the two steps of analysis under the Privileges & Immunities Clause.] Additionally, less restrictive means are available. Rather than requiring local hiring, the state could provide for job training to increase the skills of locals, increasing their chances of being hired. This would not prevent others from applying or competing with their skills.

Thus, the trade union will succeed against the state in their action. [Note: I would have inserted the word "probably" or even "arguably" in this sentence. The Supreme Court did not actually decide that Camden's ordinance failed scrutiny; it remanded to the Supreme Court of New Jersey for further proceedings. Accordingly, I think the student made an unwarranted assumption that the state would surely lose.]

Yellow Steel, Inc., could not challenge the law under the Privileges and Immunities Clause because it is a corporation.

The union and the contractor might also challenge this statute under the Dormant Commerce Clause.

Under this analysis, the first factor to look at is whether or not the subject being regulated is validly within the state's police power. Both incoming and outgoing commerce cases indicate that attempts to regulate commerce for local advantage are generally not valid police power actions. One could view the act at issue in this problem as an attempt to stop individuals from purveying their skilled services across state lines. This law overtly discriminates against interstate commerce.

A possible exception is provided by Reeves v. Stake, however. Under this case, states are allowed to prefer their own citizens to the extent they participate in the marketplace. Because the contracts at issue in this problem involve state projects, the statute will survive scrutiny under the dormant Commerce Clause. See the White case.

[Note: The student concluded that the law violated the Dormant Commerce Clause. In light of the White case, I think this was incorrect, so I have changed the answer.]

III

Note: This is an example of a theoretical question.

Sample answer: The subsequent actions of Congress and the executive do not destroy the wisdom I.N.S. v. Chadha.

First, the use of non-statutory, informal understandings does not destroy the wisdom of any court decision. The internal logic to the argument suggests that, because the government was prevented from acting in an unauthorized method, and it has now switched to a method even less authorized, the Courts should back down. This is not far from saying "Don't convict drug dealers. Convictions will make them sneakier in the future." To allow this argument would work ruin on the rule of law. No governmental method could be reviewed for fear a sneakier method would replace it.

Second, questions concerning the constitutional grants of power have traditionally been handled successfully by the courts as justiciable questions. See, e.g., Bowsher, Myers, Morrison. When the courts have refused to hear a case, seeing a political question, it has been due to a lack guidance in the Constitution. The provisions of Art. I, § 7, cl. 2, are clear and plain. A failure to interpret and apply them would constitute a retreat by the Courts. All governmental actors would be allowed to wheel and deal for power. This would completely distort the intent of constitutional government, that powers be clear, limited, and where they reside be known.

Third, the repeated enactment by legislatures of laws that do not pass constitutional muster is nothing new. The case law of the Commerce Clause is replete with examples of this. The legislatures aren't concerned with constitutionality, but only with what they want done. The difference between the Commerce Clause and the present situation is in the type of judgment being passed. In the early Commerce Clause cases the value judgments of the Court were being pressed on the country. In this type of situation reconsidering the wisdom of a decision may only imply a shift in values. In the present case the judgment that was made is not so much a value judgment as a direct application of the procedural requirements of the Constitution. To allow repeated passage of laws to question the wisdom of the Court is to imply that repeated violation of a law means that it should be ignored. Instead the role of the courts is to strike down improperly made law. Congress is then forced to pass a proper law or secure an amendment to how laws are made.

The real demand upon the Court, in order to show wisdom, is to follow through on its earlier opinion. This could be done in one of two ways. First, overrule Chadha and give the conditions for a legislative veto. Second, accept cases coming up and strike down laws with legislative vetoes. While the second course is more in line with the constitutional text, either would clarify the situation. The truly unwise decision would be to allow Chadha to be ignored with no resolution of the situation. This takes the certainty out of both Supreme Court decisions and statutes. By not resolving the situation, the Court begs the question, which of its rulings may be ignored? Additionally, the Court's failure to resolve the situation means that the validity of hundreds of laws is uncertain. Both of these problems remove certainty from the law.