University of Kentucky
College of Law
Constitutional Law I Professor Goldman
Final Examination May 5, 1992

3 Hours

INSTRUCTIONS: This examination consists of three essay problems. The
first two are each worth 40%, the third is worth 20% of your score.
All three problems begin with the facts set forth in the Scenario that
follows this introduction. Each problem assumes, as additional infor-
mation, the facts set forth in the preceding problems or problems.

Please do not write in the margins of your bluebook pages and
write on one side of a page only.

Scenario

On May 5, 1997, the President's Fact Finding Commission on Global
Warming issued a report stating that satellite photos show that the
polar ice caps in the period 1993-96 were 2%-3% smaller than the 1975-
1985 average . The average high tides for the U. S . in 1996 was almost
3 feet above the median average for the period 1960-85 and almost 2
feet above the highest average for that period. The average low tides
for the U . S . in 1996 was almost 3 feet above the median average for
the period 1960-85 and almost 2 feet above the highest average for
that period. For 5 consecutive years prior to 1997 Southern Californ-
ia and the Great Plains region experienced increasingly severe
droughts while for the same period the regions of the Northwest, the
Colorado River Basin, the Northeast, and Florida experienced record
annual rainfalls. In the four years prior to 1997, the 15 largest
cities in the U.S. had average summer high temperatures 4-6 degrees
above the averages for the past century and average winter low temper-
atures 4-8 degrees above the averages for the past century. There
were serious crop failures due to disease or unseasonal weather condi-
tions for four of the past five years for wheat, corn, soy beans, and
garden vegetables. The Commission report concluded that these events
are a result of global warming caused by excessive levels of carbon
dioxide and other contaminent gasses in the atmosphere due to world
wide human overpopulation, record numbers of domestic and domesticated
animals, reduction of forested areas, and high rates of burning carbon
fuels. The Commission report called for immediate, drastic measures
to save the global ecosystem from collapse.

PROBLEM 1 - 40%

On August 5, 1997, the President signed a law passed by Congress
providing the following measures:

a) There is established a three member Commission of Energy
Savings which is to be known as CES. Each member of CES shall
be appointed for a five year term by the President with the

advice and consent of the Senate. CES members may be removed
from office by concurrent resolution of the House and Senate
for corruption or incompetence.

b) As of March 15, 1998, no new gasoline powered passenger
vehicles shall be built or sold in the U.S. unless CES certifi-
es that under normal conditions the vehicle consumes less than
1 gallon of gasoline for every 40 miles of highway travel and
less than 1 gallon of gasoline for every 30 miles of city
travel.

c) As of January 15, 1998, the CES shall issue monthly meat
and poultry coupons for every resident of and visitor to the
U.S. Each coupon shall authorize the purchase of one ounce of
quadruped meat or poultry and shall be designed to limit indiv-
idual consumption of meat to an average of 1 1/2 pounds a week and
poultry to 2 pounds per week. No meat or poultry for human
food consumption shall be sold without the merchant receiving the
required CES issued coupons.

d) As of February 1, 1998, all quadruped meat and all poultry
slaughtered for human food consumption must be slaughtered in a
CES licensed facility subject to record keeping requirements
established by CES. As of the same date, all quadruped meat and
all poultry sold at retail for human food consumption must be
sold in a CES licensed facility subject to record keeping re-
quirements established by CES.

e) As of January 1, 1999, no household in the United States
may have more than one domestic animal weighing over 20 pounds.

f) As of January 1, 1998, no residential construction can be
begun that involves building a structure containing more than
2,500 square feet of living space, as measured by CES regula-
tions, and as of March 15, 1998, all new residential construc-
tion shall comply with energy conservation regulations estab-
lished by CES.

g) Violation of the above provisions shall be criminal of-
fenses punishable by fines up to $1,000 and imprisonment up to
3 months for each violation and for each day of violation.

On September 1, 1997, the Governor of Kentucky files suit, on
behalf of the state's consumers, challenging the constitutionality of
the above law. You are a legal assistant for the federal district
court judge in whose court this suit is filed. Realizing that she
will be expected to treat this case as expeditiously as possible, the
judge instructs you to analyze the constitutional issues likely to be
raised during the course of the suit, state what you think should be
the appropriate constitutional resolution of these issues and the
reasons for your conclusions.

Problem 2-40%

On September 15, 1997, South Carolina passed the following law:

1) The legislature of this state finds that the federal govern-
ment has not responded with adequate measures to counteract the
ecological disaster facing our citizens as described in the re-
port of the Presidential Fact Finding Commission on Global Warm-
ing. Major improvements in efficient operation of vehicles is
possible, as is proven by the highly efficient four cylinder
motor vehicles manufactured in this state. We must follow the
example of the tree plantations in this state where timber is
harvested by those who farm trees rather than those who destroy
forests. The provisions of this act, therefore, are adopted in
order to set a better example for the nation and the world.

2) As of January 1, 1998, no gasoline powered passenger
vehicles can operate in this state which have more than four
cylinders unless federally certified as getting more than 45
miles per gallon on the highway. Vehicles operating in
violation of this law shall be impounded and shall escheat to
the state which shall pay the owner for its scrap value.

3) No one may destroy or cut down a tree without a state issued
permit. The state Forestry Service shall issue such permits if
a tree was killed by natural cause or accident or was planted
as part of an established tree farming program and will be
replaced within nine months by a newly planted seedling. Viola-
tion of this provision shall be punishable as a second degree
misdemeanor .

4) The license issued two years ago to South Carolina Electric
Power Company (SCEP) to build a coal and gasoline fueled elec-
tric generating power plant is hereby cancelled. Funds expend-
ed by SCEP for construction of that plant may be treated as
costs of building its existing nuclear power plant when the
Public Service Commission assesses the reasonableness of any
future rate increases that might be proposed by SCEP.

You represent Piney Forest Retirement Homes, Inc., a Kentucky
corporation licensed to do business in South Carolina. Piney owns 400
acres of woodlands in South Carolina that it has begun to develop for
retirement homes. It has built 25 homes and has plans approved by the
county zoning board, to build 250 more, including fifteen for which it
already has executed a sales contract and received partial payments.
Piney owns 4 six cylinder passenger cars with which its salespeople
take customers to show homes. These cars consume about 23 miles per
gallon on the highway. Smaller engine vehicles have difficulty climb-
ing the steep terrain to the development site. Piney must cut 20-30
trees to clear each building site. Also, Piney will not be able to
build more that another 10 homes unless the cancelled power plant is
completed. This is due to the fact that SCEP will not install new
power lines until it can expand its existing generating capacity.

Local counsel filed suit in the state trial court challenging the
constitutionality of the state law. It brought the suit in the South
Carolina court because its judges are known to be very supportive of
economic growth and development. The suit was dismissed on the ground
that the court will entertain challenges to state laws only from state
citizens or corporations. The company wants to appeal but only if it
has a reasonable prospect for success. You are asked to give your
advice and state your reasons for giving that advice.

Problem 3-20%

On July 4, 1999, the President signs a treaty approved by the
Senate which provides:

a) The terms of this treaty shall become effective upon being
signed by the United States of America, Canada, Mexico, Brazil,
Argentina, and at least five other Western Hemisphere nations.

b) As of the effective date of this treaty, there shall be no
further cutting of any rain forest trees or shrubs anywhere in a
signatory nation. The boundaries of rain forests shall be de-
fined by the Rain Forest Boundary Commission. The Commission
shall consist of one member designated by the respective presi-
dents of Argentina, Brazil, Canada, Mexico and the Unitd States
of America.

c) The courts of the signatory nations shall enforce the prohi-
bition established by the previous paragraph by means of injunc-
tive orders.

d) Owners of rain forest lands shall be paid an annual acreage
rental fee determined by dividing the total number of rain forest
acres into the annual revenues contributed into the International
Rain Forest Rental Fund. That Fund shall be paid an annual con-
tribution by each signatory nation of 5% of the wholesale cost of
all carbon and hydrocarbon fuels consumed during the previous
year in that nation.

e) Every year for the next fifteen years, each signatory nation
shall restore, through reforestation, at least 1% of its total
national acreage deforested between 1950 and 1999 by fire, farm-
ing, timbering, or erosion. Each nation shall raise its own
revenue to finance this program but the United States of America
shall provide a ten percent supplement as an addition to all
funds expended by a signatory nation in carrying out this treaty
obligation.

You are a professor of constitutional law at Indioho College of
Law, a major American law school. A law suit has been filed by a
member of Congress challenging the constitutionality of the U.S. par-
ticipation in the above treaty program. You have been invited to
address a meeting of the American Bar Association to analyze the cons-
titutional issues and explain what you anticipate will be the resolu-
tion of this suit. What will you tell them?