FINAL EXAMINATION -- CONSTITUTIONAL LAW I
May 6, 1994 Prof. GOLDMAN

Three Hours

Instructions
There are 3 parts in this exarnination. All are essay problems. The first is worth 20%
of the total grade, the other two are each worth forty percent of the total grade.

Be sure to identify your answer using the problem number and, where appropriate, the
question number and letter. Try to not write in the left hand margin of the page and please
write on only one side of a page.

Please answer what has been asked. If a question is ambiguous, identify and resolve
the ambiguity, state your resolution, and answer the question on that basis.

Good luck.

Problem I- 20%

You are counsel for a U.S. Senate Committee that is considering a bill that would
require all Americans to be covered by health care insurance. It has been proposed that the
bill contain a provision designed to reduce the costs of health care insurance by "ensuring the
fairness and integrity of the manner in which fees are established by health care providers."
This proposal would establish a national Commissioner of Medical Fee Policies and require the
Commissioner to adopt regulations controlling billing procedures and billing policies for health
care providers (hospitals, nursing homes, physicians, nurses, and the like). However, the
proposal expressly prohibits the Commissioner from adopting regulations that "would result in
insurance policy beneficiaries having to pay more for health care insurance than they would
have to pay in the absence of such regulations". Several Senators on the Committee are not
lawyers and have asked for your guidance concerning the constitutionality of the proposed
establishment of a Commissioner of Medical Fee Policies and the constitutionality of certain
provisions they are have been discussing as possible additions to that proposal. Accordingly,
you are asked for explanations respecting the following:

1. Is it or is it not Constitutional for the federal government to regulate the procedures
and policies by which health care fees are charged by local doctors, hospitals, nursing homes
and the like?

2. Some Senators want to provide a method of challenging the Commissioner in the
event that regulations are adopted that would make health insurance more expensive. There-
fore, the following provisions have been suggested as additions to the proposal. Explain why
each of these suggestions would or would not be constitutional.

a) The statute shall include the following statement: "Within sixty days of the adoption
of a regulation by the Cornmissioner, any person who believes that the regulation will increase
health care costs may bring a suit in federal district court to have the regulation declared void
on the ground that it does not comply with the stated statutory prohibition against regulations
that increase health care costs."

b) The statute shall include the following statement: "A regulation adopted by the
Commissioner shall become void and unenforceable if within sixty days of its adoption the
Senate and House of Representatives pass a concurrent resolution declaring that the regulation
does not comply with the stated statutory prohibition against regulations that increase health
care costs."

c) The statute shall include the following statement: "A regulation proposed by the
Commissioner shall become effective only if approved by a concurrent resolution of the Senate
and House of Representatives declaring that the regulation complies with the stated statutory
prohibition against regulations that increase health care costs."

d) The statute shall include the following statement: "The Commissioner shall serve
for five years except that the term of office shall expire immediately upon two thirds of the
Senate voting in favor of a resolution declaring that the Commissioner has adopted regulations
that do not comply with the stated statutory prohibition against regulations that increase health
care costs."

Problem II-40 %

Hawaii has adopted the following law:

Whereas the fragrant island aroma on our beaches adds to the attractiveness of our
islands for tourists and residents, and whereas many sun tanning lotions and body
oils emit, sharp, rancid or other unpleasant odors, the following regulations are
adopted:

1. No oil or lotion designed to be applied to the body may be sold or distributed
unless it has been manufactured within the past twelve months and has the scent of
fresh pineapple.

2. No person may appear in a public place who within the past two hours has
applied an oil or lotion to their body unless it has been manufactured within the
past twelve months and has the scent of fresh pineapple.

3. The previous two restrictions shall not apply to medications purchased in accor-
dance with a prescription issued by a licensed physician for treatment of skin dis-
eases or disorders.

4. Each incident of violation of paragraph 1, above, shall be punishable by a fine
of up to $1,000 or imprisonment for 30 days or both.

5. For a first offense of paragraph 2, above, by a resident, a fine of $5 shall be
imposed. For each subsequent offense of that paragraph by a resident, a fine of
$10 shall be imposed.

6. For a first offense of paragraph 2, above, by a non-resident, no fine shall be
imposed but a warning citation with a copy of this law shall be issued. For each
subsequent offense of that paragraph by a non-resident, a fine of $20 shall be
imposed.

The only products presently available that meet the above standards are manufactured
by a small Hawaiian company. You are the lawyer for a chain of Hawaiian drug stores. Your
client has a current inventory of about $260,000 worth of body lotions and oils that do not
conform to the requirements of the new law which goes into effect the 1st of next month. It
also has contracts requiring it to purchase an additional $60,000 of such non-conforming
products over the next three months. Your client has asked what the prospects are of getting a
federal court order enjoining enforcement of this new law or some other relief. Discuss all of
the constitutional issues you will explore before advising your client and your assessment of
your client's chances respecting each.

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Problem III - 40%

The zebra mussel is a tiny fresh water bivalve whose native habitat is in Europe. It
was transported to the Northern U.S. when bilge water was emptied from ships coming to the
Great Lakes through the St. Lawrence Seaway. The zebra mussel has thrived in U.S. waters
where it often colonizes in intake and outflow pipes that transfer water pumped for human
consumption and water used to cool electric power generators and other equipment. In colo-
nizing, the zebra mussel cements itself to the pipe surface or to other zebra mussels with a
powerful bonding material produced in the mussel's stomach. In a matter of months, a colony
of zebra mussels can substantially reduce or even completely close the pipe flow. No safe way
has been found to destroy or deter the zebra mussel. Cleaning colonies from pipes they have
clogged is a slow, expensive procedure.

In the Summer of 1994, scientists working for the State of Michigan Wildlife Service
applied the techniques of genetic engineering to modify a fish in the pickerel family so that it
has a strong appetite for and ability to devour zebra mussels. The Service has named the
modified species a Zep and obtained a U.S. patent for the technique of producing the Zep. As
an experiment, the Service stocked one river and several areas of Lake Michigan near power
plants to develop data for determining the number of fish needed to eliminate zebra mussel
colonies and has now developed a formula for estimating the required number of Zeps to
accomplish the task within a given area of water.

Michigan has adopted legislation requiring that the production of Zeps be confined to
Michigan's state owned hatcheries or state licensed private hatcheries located in Michigan.
The Zep has a life cycle of three years and is sterile so that under present circumstances all
stocking and restocking will have to come from Michigan hatcheries. Michigan law requires
that the Zep be used to control and eliminate zebra mussel colonies in Michigan waters before
they can be sold for use elsewhere. The same law provides that when the state's needs have
been met, sales of the Zep must give priority to purchases for use in states bordering on Lakes
Michigan, Huron, Superior and Erie (the lakes that border Michigan) before sales can be made
for their use anywhere else.

The Canadian government has requested the U.S. government to require Michigan to
let it compete for the purchase of Zep or for it to license Zep production in private hatcheries
in Canada or in other parts of the U.S. so that the costly zebra mussel menace can be eliminat-
ed more quickly. Similar demands have been voiced by several governors on behalf of state
and private hatcheries in their states. The President favors breaking Michigan's strangle hold
on the production of Zep. You are on the President's legal staff and have been directed to
analyze the available options for action to break that strangle hold.

Explain the advice you will give.

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