Legal Analysis: Separation of Powers & Constitutional Rights in a Hypothetical Case, Exams of Law

Download Legal Analysis: Separation of Powers & Constitutional Rights in a Hypothetical Case and more Exams Law in PDF only on Docsity! Constitutional Law Professor Dorf Spring 1998 Examination Post-Mortem In lieu of a model answer, this memorandum discusses the major issues raised by my exam and some of the more common answers. If you wish to discuss your exam, please read this memo first. I am happy to meet with you, although the purpose of the meeting is strictly educational; I have a firm policy against changing grades. A) General Observations and Common Methodological Difficulties Overall, I was very pleased with the quality of the examination answers I received. Nearly all demonstrated a familiarity with the principal doctrines and concepts covered during the semester. Among the most common general difficulties on the exam, the following stood out: 1) Boilerplate Many answers contained too much in the way of general discussion of doctrine. It's appropriate to state the Lopez three-part test. It's a waste of your word limit to expend a couple of paragraphs explaining where the test comes from. Likewise for the incorporation doctrine. 2) Conclusory Statements Some of the questions presented are quite difficult. Good answers explained why they are difficult and then argued for a particular resolution. Weak answers simply stated a conclusion without any supporting argument. E.g., "The ISCA violates the anti-commandeering principle of Printz." That is a plausible view, but it requires support. 3) Inability to Distinguish Difficult from Easy Questions Whether the appointments clause's reference to "the courts of law" includes state courts is a difficult question as to which good answers gave arguments one way or the other (or both, along with proposed resolutions). Whether an adultery prosecution for sex in a bookstore violates the First Amendment is an easy question. It does not. Although virtually no one thought there was a First Amendment violation, too many answers devoted space to taking the question seriously. 4) Fence-Sitting Many answers hesitated to draw conclusions. Drawing conclusions is what you will be paid to do as lawyers, even, perhaps especially, when you are simply asked to give advice. It's okay to explain why you need to qualify your answer, but that does not mean you should qualify everything. Words of qualification like "probably" or "might" should be used along with explanations of why you believe the law is uncertain. 5) The Road Not Taken If question A is resolved in one way, question B need not be faced. A court could accordingly resolve question A that way, and not say anything about question B. (E.g., if the role of members of Congress in the appointments process violates Metrop. Wash. and Buckley, even if the ISC is an inferior officer, then it doesn't matter whether the ISC is an inferior or principal officer.) A lawyer is in a different position. At least if question A is difficult, you should explore question B even though you think the question would be avoided as a result of the proper resolution of A. What if the court (or your boss) disagrees? You need to then explain how question B should be resolved. 6) Organization Especially in light of the way in which the separation of powers question overlaps with the federalism question and the due process question overlaps with the equal protection question, careful organization is essential. Weaker answers tended to ramble. B) Substance A Preliminary: Standing: Although the question did not ask you to address standing issues, some of you did, which is fair enough, because they are jurisdictional. However, because the case is in state court, the Article III standing limits do not apply. Thus, most of the arguments about standing were off base. Some of you did point out the oddity that Dillinger was challenging the constitutionality of the ISCA, given that he himself had invoked it. This is not exactly a standing objection. It seems more like a claim of waiver or estoppel. 1) Separation of Powers In Clinton v. Jones, the Court declined to create a temporary immunity for the President for private acts prior to his incumbency, but the Court made clear that Congress could provide such an immunity. If so, why can't it take the lesser step of providing a neutral prosecutor in cases against HRFGOs? Thus, it would seem that the source of Congressional power is whatever power a particular HRFGO happens to carry out. (N.B. No one made this argument in quite this form, so don't feel too bad if you missed it.) Nonetheless, the ISCA is almost certainly a violation of the 10th Amendment per Printz and New York v. United States. The Act forces the Governor to choose between two options - dismiss the charges or cede executive authority to the ISC - each of which is problematic. As many of you noted, this is similar to the false choice invalidated in New York. The ISC doesn't exactly commandeer state officials in the way that the Brady Act did, but it may be just as bad or worse. Whereas the Brady Act required state officials to perform a federal function, the ISC removes a core state function and gives it to the feds. This is not a case like Garcia in which federal law displaces state law as to a matter of great state importance. Since Garcia remains on the books, that would be permissible. But the ISC leaves state law as it is, and expropriates the power to enforce it. Moreover, the ISCA commandeers the state judiciary in the appointments process. This is a closer question, however, because as the Printz Court acknowledged, the federal govt traditionally had more control over state judges - although in the modern era, perhaps the feds can only require that state judges give effect to federal law per the supremacy clause. Note, by the way, that if one says the state courts are included within the appointments clause's reference to "courts of law," that undermines the commandeering claim. 3) Substantive Due Process Most of you did a pretty good job with this aspect of the question. You recognized that in order for Dillinger to have any chance of prevailing, he would have to characterize his right as falling within those already recognized. Such an argument would construe Carey and Eisenstadt as protecting a right to sexual intimacy, at least for heterosexuals. Nearly all of you also recognized that this would be quite difficult, because the Court has repeatedly invoked adultery as lying at the end of a parade of horribles, and because of an ongoing tradition prohibiting adultery. Although that tradition may be honored primarily in the breach -- given that adultery is rarely prosecuted -- such arguments based on desuetude have not been successful in recent years. (E.g., Bowers v. Hardwick, Washington v. Glucksberg). Some of you cited Hollenbaugh v. Carnegie Free Library, 439 U.S. 1052 (1978), but that was merely a denial of certiorari, and such denials have no precedential effect. Good answers also noted that the fact that Dillinger is separated from his wife and his children are grown makes the likely goals of the adultery prohibition inapplicable to him, but that such overinclusiveness is permissible if rational basis scrutiny applies. Some good answers also noted that even under the approach of the dissenters in Bowers v. Hardwick, Dillinger might lose, because the conduct at issue here took place in a public place. This is not obvious however, because he is being prosecuted under an adultery statute rather than a lude public conduct statute. 4) Equal Protection The question asked you to address discrimination on the basis of sexual orientation. Most of the better answers recognized that Dillinger's strongest argument along these lines would first require him to argue that Romer v. Evans implicitly applies heightened scrutiny to discrimination against gays and lesbians. Then, under the symmetry principle of Adarand, discrimination against heterosexuals would also be subject to heightened scrutiny. Next, the combination of the adultery prohibition and the failure to recognize same-sex marriage must be portrayed as sexual orientation discrimination. And finally, Dillinger needs to argue that the prohibition fails heightened scrutiny. Each of the steps in this argument is questionable. To begin, Romer does not purport to apply heightened scrutiny. Taken at face value - which is the way a lower court would have to take it - the case invalidates "animus"-based laws. Whatever else could be said about the adultery prohibition, it certainly doesn't reflect animus towards heterosexuals. Some of you said that Romer rejects heightened scrutiny for sexual orientation. That's not true. It doesn't address the claim because it wasn't argued by the plaintiffs. So even if Romer only stands for the anti-animus principle, it still leaves open the possibility that sexual orientation ought to be treated as a suspect or semi-suspect classification. Bowers v. Hardwick seems to foreclose such an argument (given that the opinion reads as a homophobic screed), but then, as Justice Scalia argued in his Romer dissent, Bowers also seems inconsistent with the result in Romer. So maybe after Romer, Bowers should be read as silent on the question of whether sexual orientation discrimination triggers heightened scrutiny. If so, there are very good arguments that it ought to. Gays and lesbians have been and continue to be the victims of rampant discrimination. Moreover, the closet tends to diminish gays' and lesbians' ability to achieve change through the political process, because it makes organization costly. And discrimination on the basis of sexual orientation looks very much like sex discrimination, in that it singles people out for their failure to conform to sex-role stereotypes. So far so good. But as many of you noted, the adultery prohibition does not discriminate on the basis of sexual orientation as such. Even if we assume that only straight people can marry, not all straight people do. Following Geduldig, we might say that the adultery prohibition distinguishes between married and non-married persons. Moreover, some of you noted that gays and lesbians can and do enter into conventional marriages, although some of you seemed to think that this fact completely dissolved the sexual orientation discrimination issue. That seems too quick in light of Loving v. Virginia. Finally, some of you suggested that Dillinger can't complain about the state's failure to recognize same-sex marriages because he's not disadvantaged by that failure. If this is a standing objection, it doesn't apply in state court. (See above.) However, as a small number of answers noted, the real difficulty is Dillinger's selective focus. If Kent prosecutes gays and lesbians for sodomy or fornication under circumstances analogous to those in which it would prosecute married persons for adultery, and if the penalties are the same, then the possibility of adultery prosecution does not in any way disadvantage heterosexuals. * * * There were many other interesting and intelligent things people said about each of the above subjects. This memo just hits upon the high points.