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CONSTITUTIONAL LAW - I
Prof. GOLDMAN Spring 1995

FINAL EXAMINATION - THREE HOURS

Sparkspur is a natural rock crystal found principally in Indioho, a state in the United
States. The largest known concentration of sparkspur is on state owned park land. Six months
ago, researchers at the University of Indioho discovered a method of using sparkspur crystal to
make superconductor wire. Because the process is relatively simple, the cost of producing the
wire should not be much more than the cost of producing conventional wire. Therefore, it is
generally believed that this discovery will revolutionize the design and construction of almost
every aspect of electronic and electrical appliances, equipment, and electric transmission. The
University is expected to soon hold the patent on the sparkspur superconductor manufacturing
procedure and University engineers are currently designing equipment to mass produce the
superconducting wire.

The Governor and legislative leaders have been debating how Indioho can best exploit
this discovery for the benefit of its citizens. A number of proposals have been offered.
Because you are the Governor's personal counsel, and a known brilliant student of Constitu-
tional Law, you are asked by the Governor to assess the extent and seriousness of any legal
problems posed by each of these various proposals and what changes might be made to remove
or reduce any legal problems that you think may be encountered.

Proposal A
Indioho should lease the mining of sparkspur at the state park to the highest bidder but
limit bidding to Indioho residents. Also, the lease should provide that the bidder agree to
recruit at least sixty percent of its workforce from Indioho residents and sell the mined crystal
only to superconductor wire manufacturers located in Indioho.

Proposal B
Indioho lease the mining of sparkspur to the highest bidder and place a 25% excise tax
on the sales price of sparkspur mined in the state. The revenue from that tax would go into a
special fund to provide subsidies to encourage superconductor wire, appliance and equipment
manufacturers to locate in Indioho.

Proposal C
Indioho operate a sparkspur mine itself and sell mined crystals at a 20% price reduction
to superconductor wire manufacturers located in Indioho. In addition, as a condition of sale, it
should require the wire manufacturers to flll orders from Indioho located appliance and equip-
ment manufacturers before filling orders for other customers.

1
Proposal D
Indioho should issue superconductor wire manufacturing licenses free of charge to
manufacturers located in the state but impose a 10% gross sales fee on any out-of-state manu-
facturers that it licenses to use the manufacturing process. In addition, it should require all
superconductor manufacturers that it licenses to flll orders from Indioho located appliance and
equipment manufacturers before filling orders for other businesses.

What advice will you give the Governor and what are your reasons?

It is 1999 and Snuffout Pharmaceutical Corp., headquartered in Lexington, KY, has
developed, an aerosol spray that transmits a Snuffout developed sperm suppressant agent called
Nobrats. A very small inhaled dose of Nobrats, about three cubic millimeters, renders a man
sterile for six to nine months. The spray has been approved by the U.S. Food and Drug
Administration (FDA) as a contraceptive but is available only with a physician's written pre-
scription. The FDA regulation prohibits a physician from issuing more than three Nobrats
prescriptions a year to any male patient and prohibits prescribing the drug for anyone under the
age of 18. Although there are no known serious side effects, the chemical composition of
Nobrats provides cause to suspect that long term heavy exposure could cause cancer.

Snuffout has been marketing Nobrats abroad as well as in the U.S. Most other coun-
tries allow Nobrats to be sold without a prescription. Last August, during a 12 hour period,
large quantities of Nobrats were sprayed into the air intake ducts of several public buildings
and on at least a half dozen crowded buses in the middle eastern nation of Irasp. A total of
five persons were arrested in connection with these incidents. Interrogation of those arrested
revealed that they belong to a group dedicated to curbing population growth in countries, such
as Irasp, in which influential religious leadership has successfully prevented the adoption of
government sponsored birth control methods.

In response to the demands of the Iraspian government, which has now totally banned
Nobrats, the President of the United States require has ordered an embargo on the shipment of
Nobrats to Irasp or to any of the five countries that have borders contiguous to those of Irasp.
In imposing the embargo, the President cited: l) her inherent authority as Chief Executive of
the United States, 2) the Arms Embargo Act which is a recently passed law authorizing the
President "to impose an embargo on the shipment of all armaments and equipment of warfare
when in the President's judgment such shipments will endanger the security of the United
States or any nation that is friendly to the United States", and 3) the Treaty of Peace with Irasp
which among other things states "each government shall exercise its full powers to ensure that
its citizens and agencies do not endanger the domestic peace, safety and security of the other
nation. "

The American Society for Zero Population Growth has retained you as a special con-
sultant to assess the possibilities of getting judicial relief from the impact of the embargo.
Among its activities, the Society raises funds to provide free Nobrats to poor people in under-
developed countries including Irasp and three of the adjacent countries (Bikerstan, Raudilan,
and Ooze) affected by the embargo. Two Bikerstani citizens and three Raudi citizens, who are
residing in the U.S. on student visas, have expressed a willingness to join any suit because they
wish to have continued access to Nobrats when they return to their homelands. Preliminary
discussions with Snuffout executives indicates some reluctance on their part to oppose the
embargo in court. Their fear is that if the Congressional leadership is unhappy with their
unwillingness to cooperate, more severe export restrictions might be imposed.

Explain what judicial relief from the embargo, if any, you think can be expected and
your reasons for reaching your conclusion.

III -

The Home on the Range Act, passed by Congress early in 1997, established the Wild
West Restoration Commissioner (hereinafter "Commissioner"). The Act gives the Commis-
sioner authority to "adopt any regulations necessary and appropriate to restore to a section of
the country, to the extent feasible, the natural habitat and environment encountered by our
pioneer forbearers and their Native American predecessors." In addition, the Act authorizes
the Commissioner to distribute annually up to $1 billion in grants to encourage state and local
governments to cooperate in this effort.

Three months ago the Commissioner adopted a series of regulations that become effec-
tive in one year (June 1998). He also has issued several grants.

Under the adopted regulations, the Commissioner has designated as the Wild Bison
Restoration Area (hereinafter "Area") a 7,800 square mile section West of Federal Highway
83, East of Colorado State Road 63, North of Federal Highway 36 and South of Interstate 80.
This roughly rectangular shaped area is situated in the Northeastern corner of Colorado, the
Northwestern corner of Kansas, and the Southwestern corner of Nebraska.

The adopted regulations allow the Commissioner to license up to four bidders to spon-
sor and control herds of American buffalo (bison) in the Area. The license, which must be
renewed every five years, requires the sponsor to prevent its bison herd from leaving the Area.
Also, to prevent overpopulation of the herds and provide a financial incentive for the sponsors,
each year the licensed herd sponsor must slaughter and sell the meat and hides from enough
bison in its herd to reduce its size to 1,600-1,700 animals.

The regulations require that the licensed sponsors be residents of one of the three states
in which the Area is located, have cattle or sheep ranching experience, post a $1 million per-
formance bond, not have a record of felony convictions, and be one of the four highest bid-
ders. The regulations further require that all herd control be done without the use of motorized
vehicles, electric cattle prods, bright lights, or other tools and equipment not available in the
l9th Century.

Under the regulations it is a felony punishable by up to five years' imprisonment and
up to $10,000 fine to kill a licensed herd bison except as permitted by the license agreement or
except as necessary to save an imminently endangered human life. Less severe penalties are
imposed for intentionally injuring a licensed herd bison.

Landholders and public authorities in the Area are prohibited by the regulations from
fencing land in a way that totally excludes herds from entering. An exception to this restric-
tion permits up to two acres to be fully fenced if the land surrounds a permanent building. In
order to avoid intermixing and to promote disease control, cattle may not be raised within the
Area unless they are at all times kept within such fully protected enclosures.

State game wardens are required by the Commissioner's regulations to report to the
Commissioner any dead or seriously injured bison found in the Area and the circumstances of
the injury or death. The regulations also require state game wardens to kill and burn any cattle
found in the Area unless the cattle are within a fully protected enclosure. Each state is given
an annual grant of $300,000 to reflect the added burdens imposed on its game wardens.

The regulations offer a $10 million annual grant to each state if it imposes and enforces

a 45 mile an hour speed limit for motor vehicles operating within the Area (the states may
make an exception for emergency vehicles). The Kansas legislature has refused to adopt such
a speed law, Nebraska has enacted one, and Colorado has one under consideration.

Finally, the regulations exempt the licensed herd sponsors and their employees from
any liability resulting from damage caused by the bison in their herd, exempts the herd spon-
sors from state and local taxation, and excludes them from civil or criminal liability for killing
or injuring any domestic animal that threatens, injures or kills a herd bison.

You have been hired by the Tri-state Farm Protective Association which consists
mainly of cattle ranchers and grain farmers in the affected area. You are asked to take any and
all steps to prevent the implementation of the Commissioner' s program. Explain what you will
weigh doing, your prospects for success, and the reasons for your conclusions.