Constitutional Law II: Sample Essay Problems

Exam One

The airplane crash in Wyoming that took the life of Jessica Dubroff, the seven-year old who was attempting to become the youngest person ever to pilot a cross-country air trip, prompted widespread outrage. The decision to allow Jessica to pilot an aircraft, especially during takeoff and in a thunderstorm, was called irresponsible at best and murder at worst.

 The Federal Aviation Administration (FAA) certifies pilots and regulates aircraft operating procedures. The FAA requires that "pilots in command be at least 17 years of age" and pass a series of written tests, oral tests and flight maneuver tests (14 CFR § 61. 96). FAA regulations stipulate that "no person may operate an aircraft unless the pilot in command is certified under this chapter" (14 CFR § 91. 5). The "pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of an aircraft" (14 CFR § 91.3). Although FAA regulations make it clear that each aircraft must have a certified pilot in command of the aircraft, no regulation directly prohibits a pilot in command from letting another person operate an aircraft, including during takeoffs or landings. FAA regulations do stipulate, however, that "no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another" (14 CFR § 91.13).

 Responding to public concern about airplanes operated by children, the state of Michigan enacted a law, Mich. statute § 1996, prohibiting "persons under 15 years of age from controlling or operating any aircraft during any landing or takeoff from any airport in the state." The Act created an exception for emergency situations when "the pilot in command becomes incapacitated or unable to operate the aircraft in a safe manner." Any licensed pilot or guardian who allows a child under age 15 to operate an aircraft (except in an emergency) during takeoffs and landings is subject to imprisonment of up to one year and fines of up to $10,000. The Attorney General of Michigan has also expressed the opinion that such actions by parents or licensed pilots might be prosecutable under Michigan's general "child endangerment" statutes.

Ima Moran, the mother of six-year old Jesse Moran, plans to sue in federal court for, a declaration that Michigan has no authority to prosecute parents or licensed pilots for allowing child pilots to land or takeoff at Michigan airports. Ima Moran, a resident of Full Moon Bay, New Hampshire, alleges that she plans to take a cross-country air trip with her son Jesse and a FAA-certified pilot, that they intend to land their aircraft in Saginaw, Michigan, and that she intends to have Jesse at the controls of- the aircraft during that and all other scheduled landings and takeoffs. Ima Moran argues that Mich. statute § 1996 violates the Supremacy and Commerce Clauses of the U.S. Constitution.

 Please discuss the constitutional issues presented by Moran's lawsuit.


Assume that in April, 2001, President Bush signed the Line Item Veto Act. The Act, which becomes effective in January of 2002, provides that the President may, with "respect to any bill that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States, cancel in whole any item of new spending..."if the President determines that such cancellation will not harm the national interest." The Line Item Veto Act will thus allow the new President, for example, to deny funding for specific highways, water projects, weapon systems, or government-sponsored research projects included in appropriations bills passed by Congress.

 (A)  Is the Line Item Veto Act constitutional?  In addition to cases that we have discussed, you may wish to consider the following provisions of  the Constitution:

Art. I, § 7: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it....
Art. I, § 1: All legislative Powers herein granted shall be vested in a Congress of the United States.

 (B)  What are policy arguments for and against giving the President line item veto authority?

Exam Two
Problem One

Responding to voter complaints of overcrowding at state parks and facilities, the California legislature passed the "Californians First Act of 1999." This legislation gave California residents preferred access to state parks, beaches, and recreational programs. The "Californians First Act" includes the following provisions:

§ 4 - Campsites at all state parks from Memorial Day through Labor Day may be reserved in advance by California residents. Non-residents may use state park campsites during this period only on a "space available" basis.
§ 6 - San Gregorio State Beach [south of San Francisco] and Finley Beach [near Los Angeles] are reserved for the use and enjoyment of California residents and their guests. Residents using San Gregorio Beach and Finley Beach must carry a California motor vehicle license or California identification card.
§ 12 - The California state basketball, football, and baseball camps are open only to residents of California. Tuition for the camps will be determined by the California State Recreation Department. [NOTE: These popular sports camps teach athletic skills. Training is provided by coaches from California state universities. Until the passage of the "California First Act", the camps were open to all persons willing to pay the established tuition. Many non-residents did so because of the high quality of competition and coaching provided at the camps. Tuition income covers the entire cost of operating the sports programs. To be admitted to a California sports camp, a person must first attend a "try-out" practice held in three California cities. Only about 20% - the most skilled athletes - of those who try-out are accepted in the camps.]
Open Borders Association is a organization formed to promote open access to parks and recreational facilities. Among the Association's 400 members are Susan and Ben Logan of Kansas city, who are planning to visit California by car in July, 1999. The Logans phoned the California State Parks Department to reserve a campsite at a state park and were told that advance reservations could be made only by California residents. They were invited to try to secure a campsite on a "space-available" basis. Another member of Open borders is George Harrison, a tanning aficionado from Florida. Harrison picked up travel brochures on California at an AAA office and is interested in visiting San Gregorio beach sometime in the next few years. Also a member of Open Borders is Ann McCann, of Las Vegas, who would like to enroll her daughter, Kari, in the California State Basketball Camp. As a sophomore, Kari was the second leading scorer on her high school team.Open Borders Association has filed a lawsuit challenging the constitutionality of sections 4, 6, and 12 of the Californians First Act of 1999.

Please discuss: (A) Whether Open Borders has standing to maintain this lawsuit, and (B) whether the § 4, § 6, or § 12 of the Californians First Act violates the privileges and immunities clause or the Commerce Clause of the U.S. Constitution. Please limit your answer to one separately labeled bluebook.

Problem Two

Handy ticket Corp. is a Minnesota corporation that does business in over thirty midwestern and western states. It sells
computer-printed tickets to sports and entertainment events through its over 600 ticket outlets. Consumers who purchase tickets at Handy ticket outlets pay a price equal to the price of the tickets plus a $1.50 service charge per ticket. Handy ticket makes its entire profit from service charges.

Missouri requires Handy ticket to collect and remit sales tax on the gross price (including the service charge) of every ticket sold at outlets located in the state of Missouri. The tax must be collected regardless of whether the entertainment event for
which a ticket is sold will occur in Missouri.

Handy ticket believes it is unconstitutional for Missouri to require it to collect sales tax for tickets for entertainment events occurring outside Missouri. Some 26% of the tickets it sells in Missouri are for events taking place in Kansas or other states. For example, Kansas city area Handy ticket outlets sell large numbers of tickets for concerts at the Sandstone Amphitheater in Bonner Springs, Kansas.

Does Handy ticket have a case? How strong is it? Discuss.

Problem Three

Stella Liebeck was on an America West Airlines flight from Albuquerque to Kansas City when a life raft fell out of an overhead compartment and automatically inflated. In the process, the raft tipped over a cup of hot coffee that a flight attendant had just placed on her beverage tray. The hot coffee spilled in her lap causing third degree burns.

A jury in new Mexico awarded Liebeck $5.5 million dollars in actual and punitive damages. The jury found that America West stored its life rafts in a negligent manner and provided a "defective product" - coffee at an unreasonably high temperature.
On appeal, America West argues that the damage award is preempted by the 1978 Airline Deregulation Act. Specifically, America West contends that 49 U.S.C. § 1305(a) (1) bars an award in this case. section 1305(a) (1) provides:
"No state shall enact or enforce any law, regulation, standard, or other provision having the force of effect of law relating to rates, routes, or services of any air carrier."

Is Liebeck's award pre-empted?

Exam Three
Problem One

On December 1, 1998, the following story appeared in the Los Angeles Tribune:

DOD Plans Chimp Experiments
by Lou Grant

The Los Angeles Tribune has learned that the Department of Defense plans to begin experiments on chimpanzees early next year at its Fort Ketrick facility north of San Diego. The Department hopes to learn from the experiments how fighter pilots will react in combat when exposed to potentially lethal doses of radiation.

In the Fort Ketrick experiments, some 40 chimpanzees will be trained to perform on flight simulation machines. After the chimpanzees have achieved a certain level of proficiency on the simulator, they will be placed in a flight simulator in a sealed radiation chamber and exposed to lethal doses of radiation. Various monitoring devices will be strapped to the chimps and their reactions will be videotaped for later observation and analysis.

The experiment, which has received the personal approval of the President, will cost taxpayers about $240 million.

The Tribune story shocked Sue Goodall, President of Friends of Animals, a public interest organization promoting the humane treatment of animals. Goodall is certain that her organization's membership, totally 20,000 nationwide, would support any legal action that might be taken to block the proposed experiments at Fort Ketrick.

Goodall has asked you to represent her organization in a suit to enjoin the Department of Defense's experiments. Your research has turned up a law that might be the basis for a legal challenge, California Primate Experimentation Act. Relevant sections from the law appear below:

California Primate Experimentation Act

§ 121 No experiment using non-human primates may be conducted in the state of California without a permit issued by the state Director of Agriculture.

§ 124(b) No permit shall be issued for an experiment which subject non-human primates to unreasonable pain or distress.

(c) No permit shall issued for an experiment which will cause, or is likely to cause, the death of non-human primates unless the benefits of the experiment to human health are clear and substantial.

§ 166 It shall be unlawful to transport into the state of California non-human primates for purposes of experimentation, except in compliance with the provisions of this Act.

§ 301 Any citizen may be bring suit in the courts of this state to enforce any provision of this Act.

You have discovered that some fifty chimpanzees were air shipped from Virginia for participation in the experiment. They arrived at Fort Ketrick on December 5. The Secretary of Defense has not applied to the California Department of Agriculture for an experimental permit, and has stated his clear intention not to do so.

Please answer each of the following questions in the order given. Limit your answer to one bluebook.

A. Will the court consider the merits of the Friends of Animal's case? What are the principal issues that need to be resolved before the merits are reached?

B. The Department of Defense will probably argue that the California Humane Experimentation Act cannot lawfully be applied against its proposed experiment. What are the bases for the contention, and how will the court likely resolve the issues, assuming it reaches the merits?

C. Wally Cox, a California Congressman, has introduced legislation in the House that would specifically prohibit the DOD from using its appropriations to fund experiments using chimpanzees. The President has indicated that he considers the proposed legislation an unconstitutional limitation of his inherent powers and powers as Commander-in-Chief of the Armed Forces. Does the President have a strong argument? Why or why not?

Sample Con Law II Multiple Choice Questions

1.         Which of the following statements concerning the Supreme Court's test of interstate taxation under the Commerce Clause is false?

(A)       Taxes levied by states may not discriminate against out-of-state companies.

(B)       Companies and businesses taxed must have a significant connection with the state imposing the tax.

(C)       Taxes must be fairly related to the benefits the taxpayer receives from the state.

(D)       If a company has taxable property in more than one state, taxes levied by each state must be fairly apportioned.

(E)       States may not tax "transient property" (property located outside the state's borders during the majority of the taxable year).

2.         The Supreme Court reached what conclusions about the validity of the Prohibition Amendment and implementing federal legislation?

(A)       The Court concluded that the issue of the validity of the 18th Amendment was a non-justiciable political question, and then upheld the implementing federal legislation.

(B)       The Court concluded that the 18th Amendment was a valid and properly ratified amendment, and that the implementing federal legislation was also constitutional.

(C)       The Court concluded that the 18th Amendment was a valid and properly ratified amendment, but that the federal government lacked the power to adopt legislation under the amendment that conflicted with state legislation regulating intoxicating beverages.

             (D)       The Court concluded that the 18th Amendment was not properly ratified and sent the amendment back to the states for further debate and eventual ratification.

3.         To be constitutional, a state tax must be what, according to the Supreme Court?

(A)       Both externally and internally consistent.
(B)       Externally consistent.
(C)       Internally consistent.
(D)       State taxes must only satisfy the “minimum contacts” rule.

4.         What constitutional provision did Dred Scott argue provided Congress with the authority to ban slavery in newly established territories under the Missouri Compromise?

(A)       The Property Clause of Article IV.
(B)       The Slavery Clause of Article
(C)       The Commerce Clause
(D)       The Thirteenth Amendment
(E)       The Necessary and Proper Clause

5.       Which of the following are likely to be found forms of “involuntary servitude” that constitute violations of the Thirteenth Amendment?

            (A)        The military draft
            (B)       Law requiring citizens to provide unpaid labor on state public works projects
            (C)       Discrimination against black home buyer by real estate agents
            (D)       All of the above would be forms of involuntary servitude.
            (E)       None of the above would be considered forms of involuntary servitude.