6. Ball Con Law Practice Exam Essay Questions PDF

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PRACTICE EXAM QUESTIONS CONSTITUTIONAL LAW PROFESSOR BALL

Starting on the next page, you will find six practice exam questions. I suggest that you wait until after you have finished (or almost finished) reviewing the course materials and completing your outline before looking at the questions and attempting to answer some of them. In my opinion, the most helpful way of using these practice exam questions is to try to answer at least one of them under “exam conditions,” that is (1) under time constraints and (2) after you have reviewed and outlined the material.

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PRACTICE QUESTION ONE SUGGESTED TIME: 80 MINUTES John Smith was elected President for the first time last year. It is alleged that a foreign government attempted to interfere with the presidential election by, among other things, arranging meetings between individuals representing the foreign government’s interests and top officials working for the Smith presidential campaign. The Attorney General has recently used his authority under Department of Justice regulations to appoint an Independent Counsel (IC) to investigate whether any of the alleged interactions between foreign representatives and Smith campaign officials violated U.S. law. The FBI has also been conducting its own investigation. After the IC and the FBI started their investigations, President Smith fired the FBI Director claiming that morale at the agency was low. It has been alleged that the President fired the Director because Smith was not happy with the FBI’s investigation of his presidential campaign. Some have contended that the President committed the crime of obstruction of justice by firing the Director. Fearing that the President may also fire the Independent Counsel, Congress has enacted a statute, called the Presidential Integrity Act (PIA), prohibiting the President from firing an IC appointed by the Attorney General unless it is for “good cause.” The statute does not provide a mechanism for appointing an IC. Instead, PIA leaves the decision of whether to appoint an IC in the hands of the Attorney General; what the new statute does is limit the President’s authority to fire an IC appointed by the Attorney General by requiring that the firing be for “good cause.” Based on these facts, address the following two issues: First Issue: Assume that the IC has succeeded in having a federal grand jury indict President Smith for obstructing justice in firing the FBI Director during an ongoing investigation of the President and his associates. The President’s lawyers contend that a President enjoys absolute immunity from criminal prosecution while (1) he is President and (2) for official actions (such as removing an executive branch official like the FBI Director). The lawyers are willing to concede that a President may be indicted after he leaves office for official acts that he took as President, but maintain that he cannot be indicted and tried for official acts while serving as President. In contrast, the IC contends that a sitting President may be criminally indicted and tried while still in office. The IC is willing to concede that if a President is convicted and sentenced to jail, he would not have to start serving his sentence until after the end of his presidency. What arguments can each side make to support its position? In answering that question, you should include a discussion of the relevance, if any, of Congress’s impeachment power. Second Issue: Does PIA’s limitation on the President’s authority to fire an IC appointed by the Attorney General violate the Constitution? The President argues yes and Congress argues no.

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Do not assume facts not provided. If in your estimation important facts are missing, you can explain how those facts would affect your analysis. But make sure to make arguments for both sides on the matters raised by these two issues. You do not have to reach ultimate conclusions as to who will prevail in the courts. What I care about is the quantity and quality of the arguments presented for both sides on each question. In allocating your time between the two issues, you should spend approximately two thirds of your time discussing the first issue and approximately one third of your time discussing the second issue.

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PRACTICE QUESTION TWO SUGGESTED TIME: 80 MINUTES Congress has recently enacted a law called “The Defense of Bathroom Privacy Act ” (DBPA). The law applies to privately-owned restaurants, gas stations, and grocery stores. It requires that “men’s bathrooms” and “women’s bathrooms” be used by patrons according to the gender designation on their birth certificates. Congress relied on the Commerce Clause and on Section 5 of the Fourteenth Amendment to enact the statute. The law is Congress’s first regulation of public bathroom use in non-federal buildings. Up until now, bathrooms located in places of public accommodation—including restaurants, gas stations, and grocery stores—have been regulated only by the states. California has sued the federal government contending that Congress lacked the constitutional authority to enact the DBPA. Congress enacted the DBPA in response to controversial efforts by some state and local governments to adopt laws prohibiting discrimination against transgender individuals. These state and local laws allow individuals to use public bathrooms according to the gender with which they identify regardless of the gender designation on their birth certificates. Congressional committee reports accompanying the Defense of Bathroom Privacy Act explained that the statute was not enacted because of animus toward transgender individuals. Instead, the reports explained that the purpose of the statute was to protect the privacy interests of all bathroom users. During the congressional debates over the DBPA, a handful of prominent supporters of the bill in Congress argued that the law was also necessary in order to make sure that criminals are not emboldened to enter whichever bathrooms they want in order to commit crimes. Ara Jones is a female transgender individual who was assigned the male gender at birth and has a birth certificate with a male designation. Despite what her birth certificate states, Jones has identified as female since she was a young child and considers herself to be a woman. As a result, she would like to use “women’s bathrooms” at establishments covered by the DBPA. Jones has sued the federal government challenging the constitutionality of the Defense of Bathroom Privacy Act by arguing that transgender status qualifies as a “quasi -suspect class” under the Equal Protection Clause and that the DBPA constitutes impermissible discrimination against transgender individuals. Jones is not contending that the DBPA is a form of sex discrimination; instead, she argues that the statute unconstitutionally discriminates on the basis of gender identity; in other words, that it impermissibly discriminates against transgender individuals as a class. Currently, there is no federal law that protects transgender individuals against discrimination by places of public accommodation. But there are now about twenty states that have enacted laws prohibiting such discrimination, almost all of them having done so in the last decade. At the same time, there are only a handful of elected officials in the country who identify as transgender. And the percentage of people who identify as transgender is quite small. Analyze the issues that are likely to arise in the lawsuit brought by California and in the lawsuit brought by Ara Jones, keeping in mind the nature of each challenge. Do not address justiciability issues. Also, you do not need to reach conclusions as to who will prevail in the lawsuits. But make sure to make arguments for both sides throughout your answer. Finally, do not assume facts not provided. If in your estimation important facts are missing, you can explain how those facts would affect your analysis.

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PRACTICE QUESTION THREE SUGGESTED TIME: 80 MINUTES As an alternative to surgical abortions, it is possible to induce first-trimester abortions through the taking of prescription drugs. (The drugs are not medically appropriate after a pregnancy’s first trimester.) The dispensation of drugs for first-trimester abortions at abortion clinics is commonplace in the United States. Most individuals who end their pregnancies using abortion medications choose to ingest the drugs at home rather than at a clinic. The use of drugs prescribed by doctors as a means of inducing abortion has a ninety-two to ninety-five percent success rate, comparable to that of surgical abortions. Health risks to pregnant women from “medication abortions” are rare and are comparable to those of surgical abortions.1 Arkansas has recently enacted a law requiring that so-called “abortion pills” be dispensed by a physician at a healthcare facility. However, the statute does not require that the pills be ingested at a healthcare facility. As a result of the new law, pharmacies cannot dispense abortion drugs to customers in-person or by shipping the drugs to customers’ homes. The law also requires that before the abortion drugs can be dispensed, physicians at healthcare facilities must counsel pregnant women by telling them that they “have a human life living inside of them and that they may come to regret their decision to extinguish that life.” Martha Paz is a thirty-two-year-old resident of Arkansas who lives 60 miles away from the closest clinic that dispenses abortion pills. Martha is not currently pregnant. However, she is currently in a sexual relationship with a man. She already has one biological child and does not believe that the time is right for another child at this point in her life. Martha has had one surgical abortion in the past. Martha does not object to the state requiring a doctor’s prescription before individuals can have access to abortion pills. But Martha does not believe that she should be required to travel to a healthcare facility to receive the abortion pills. She also does not want to be subjected to the statutorily-required counseling. Martha believes she should be allowed to do everything she needs to do related to a “medication abortion” in the privacy of her home. She points out that if it were not for the Arkansas law, she would be able to have the prescription drugs shipped to her home via the mail and do everything she needs to do related to the abortion without leaving her home. In order to create incentives for young women not to have abortions while pursuing higher education degrees, the state of Arkansas makes available an annual $5,000 Choose Life Scholarship to any female student who is between the ages of 18 and 30 at the beginning of every academic year. Female students between the ages of 18 and 30 are eligible for the scholarship whether they are pregnant or not. The scholarship can be used to pursue an undergraduate or graduate degree at any public college or university in the state. Martha is 1 So-called “abortion pills” are different from so-called “morning after pills.” The latter are contraceptives that can prevent pregnancy if taken shortly after engaging in sexual intercourse. Abortion medications do not prevent pregnancies; instead, they terminate pregnancies.

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currently pursuing an engineering degree at the University of Arkansas. But she is thirty-two years old and is therefore not eligible for the scholarship. Her brother Mario, a nursing student at the University of Arkansas, is also ineligible for the scholarship because he is a man. Martha has sued in federal court challenging the constitutionality of both the new Arkansas abortion law and the Choose Life Scholarship program. Mario has filed a separate lawsuit in federal court challenging the scholarship program. Analyze the constitutional issues that are likely to arise in both lawsuits. You do not have to reach ultimate conclusions on any of the issues that are likely to be disputed. But you should make sure to make arguments for both sides on those issues. Do not assume facts not provided. If in your estimation important facts are missing, you can explain how those facts would affect your analysis.

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PRACTICE QUESTION FOUR SUGGESTED TIME: 80 MINUTES When Lori Jensen ran successfully for the US presidency as the Democratic candidate a few years ago, she became the first presidential candidate in decades to refuse to release her federal income tax returns. Three years into her presidential term, she continues to refuse to make her returns public. The refusal applies both to returns filed before she was elected President and to those filed after. The Republican-controlled Congress recently passed a bill, called the Presidential Tax Disclosure Act (PTDA), requiring sitting presidents to release their federal income tax returns for the five years before they were elected and for each year they serve as President. Legislators who voted for the bill emphasized that the law was needed to promote transparency at the highest levels of government. Bill supporters also noted that there were allegations of financial wrongdoings by Jensen before she became President and that the PTDA was needed to assist prosecutors in investigating those possible crimes. There are no allegations that Jensen has committed any criminal wrongdoing after she was elected President. Jensen vetoed the PTDA, but Congress overrode the veto. President Jensen has filed an action in federal court alleging that the PTDA is unconstitutional. Jensen argues that enacting a statute in order to aid in the criminal investigation of a sitting President is an inappropriate exercise of legislative authority because it violates separation of powers. In response, Congress’s lawyers claim that what constitutes a proper subject matter of legislation is for Congress to decide and is therefore a so-called political question. In the alternative, the lawyers argue that the statute does not violate separation of powers principles. In the meantime, Derek Marshall, the state District Attorney in Fort Worth, Texas, is investigating possible financial fraud committed by Jensen, before she became President, in violation of Texas law. As part of the investigation, Marshall is seeking to enforce a grand jury subpoena issued to the Bank of Texas requiring it to provide Marshall’s office with copies of Jensen’s IRS tax filings that she gave the Bank before she became President as part of loan applications. President Jensen has filed a lawsuit in federal court seeking to quash the subpoena on the ground that the reasoning of McCulloch v. Maryland makes it unconstitutional for states to conduct criminal investigations of sitting presidents. Jensen also argues that presidents would not be able to carry out their constitutionally-mandated duties if they were subject to repeated prosecutions (she categorizes it as “harassment”) by the thousands of state prosecutors who serve across the country. For his part, Marshall argues that the Tenth Amendment allows state prosecutors to investigate any alleged violation of state laws by anyone. Make arguments for both sides in each of the two lawsuits. This is not an issue-spotting question. Instead, you should limit your analysis to the specific claims raised by the parties. You do not have to reach conclusions as to which party will prevail in either lawsuit. Do not assume facts not provided. If in your estimation there are missing facts that could be important, you can explain how those facts would affect your analysis.

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PRACTICE QUESTION FIVE SUGGESTED TIME: 80 MINUTES For decades, Idaho law has prohibited post-viability abortions except when needed to preserve the mother’s life or health. In response to the Covid-19 crisis, Idaho in 2020 enacted legislation banning all surgical abortions, except when required to save the mother’s life or health, regardless of viability. The statute specifies that the ban will remain in place until the federal government certifies the end of the Covid-19 pandemic across the country. That certification will not take place for several more months. Idaho argues that the new ban is needed to maximize the availability of medical staff and resources to test for and treat individuals with the coronavirus. During the health crisis, the state has found itself short of medical staff and resources to test for and treat patients with Covid-19. The state has also banned colonoscopies (the use of fiber optic instruments to view the colon’s lining in search of possible cancer) during the pandemic. Before the pandemic hit, abortions and colonoscopies were the two most common non-emergency medical procedures done in Idaho. In order to leave room for some medical discretion, state law permits hospitals and doctors to determine, on a case-by-case basis, whether to proceed with other (that is, other than abortions and colonoscopies) non-emergency medical procedures in light of Covid-19. New cases of coronavirus infections are taking place in Idaho, as elsewhere in the country. As of May 15, 2020, the Covid-19 death rate in Idaho is 3 per 100,000 residents, which is lower than it was on April 15. But there are some states with lower death rates. For example, Alaska’s death rate is 1 per 100,000 residents. On the other hand, some states have significantly higher death rates. For example, New York state’s death rate, the highest in the country, is 90 per 100,000 residents. New York has not implemented a Covid-19 abortion ban. Pat Jones lives in Idaho. Jones is four months pregnant, wants a surgical abortion, and has sued Idaho arguing that its abortion Covid-19 restriction is unconstitutional. Analyze the issues that are likely to arise in Jones’s lawsuit. (You do not need to address justiciability issues.) When appropriate, make arguments for both sides. Do not assume facts not provided. If in your estimation there are missing facts that could be important, you can explain how those facts would affect your analysis. Idaho is one of several conservative states that have enacted abortion restrictions in the face of the Covid-19 crisis. In response, Jeb Kennedy, a liberal US Senator, intends to introduce a bill next week aimed at protecting the right to choose an abortion. The bill would do two things. First, it would prohibit states from enacting abortion restrictions due to Covid-19 on the ground that the right to choose an abortion is a fundamental right under the Due Process Clause that should apply equally across the country. Second, the bill would make it a federal crime to trespass on the property of any private abortion clinic in the country with the intent of discouraging clinic patients from seeking an abortion. Senator Kennedy has asked for your legal analysis regarding whether Congress has the constitutional authority to enact the bill. On issues that are likely to be disputed, Kennedy is particularly interested in knowing about possible arguments for both the constitutionality and

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unconstitutionality of his proposed bill. Do not assume facts not provided. If in your estimation there are missing facts that could be important, you can explain how those facts would affect your analysis.

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PRACTICE QUESTION SIX SUGGESTED TIME: 80 MINUTES The Charter School Corporation (CSC) operates the Roosevelt Charter High School in Chicago. CSC is a private, for-profit company run by a board of directors. All of the people who work at Roosevelt are CSC employees; none are state employees. Roosevelt students do not pay tuition; instead, the state of Illinois pays for all the education costs at charter schools like Roosevelt. The CSC board, not the state of Illinois, decides how school funds are spent, the curriculum’s content, and which disciplinary policies to adopt and how to enforce them. But the state regulates some aspects of charter schools’ operations. In particular, state officials determine how much state funding each charter school receives and establishes the criteria for hiring teachers. In addition, under state law, officials at the state Department of E...