7. Ball Con Law Essay Model Answers PDF

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Model Answers---Practice Exam Questions Constitutional Law Professor Ball Please keep in mind the following five points as you read the model answers below: 

The model answers are meant to be illustrative only. There are other ways of raising and explaining the arguments below. And there are other arguments that can be raised that are not included below.

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With a handful of exceptions regarding issues where the legal answer is clear, these model answers contain no conclusions as to which party will prevail. This is because unless the legal answer is clear on any given issue, I do not expect students to reach conclusions. Instead, what I care about is the quantity and quality of the arguments made on behalf of both sides. Most of the legal questions raised by the essay questions are not meant to have a clearly correct answer. Instead, they are meant to encourage you to make arguments for both sides based on your knowledge of the law and on the facts as stated in the exam questions.

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Although these model answers use headings, your exam answers do not have to include them. Use headings only if it is helpful to you in organizing your answer. You will not gain points by using headings, nor will you lose points for failing to use them.

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As a general matter, these model answers, first, set forth all the arguments for one side and, second, lay out all the arguments for the other side. You do not have to organize your exam answers in this way if you do not want to. As an alternative, you can (1) raise an argument for one side, (2) provide the response argument for the other side, (3) move to the next argument, and so on. You will not get points for efforts to replicate the organization of these model answers. The points that you will receive in the exam will depend on the quality and comprehensiveness of the arguments that you make, not on whether your answers “look like” these model answers.

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These model answers, like most model answers, are quite detailed and expansive. Keep in mind that these answers were written by a professor rather than a student. It is by no means necessary to raise all of the points contained herein in order to receive a good grade in the actual exam. At the same time, it is fair to say that the more that you incorporate the types of arguments found here into your actual exam answers, the higher the grade that you will receive.

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TABLE OF CONTENTS QUESTION 1 . . . . . . . 3 QUESTION 2 . . . . . . . 8 QUESTION 3 . . . . . . . 13 QUESTION 4 . . . . . . . 18 QUESTION 5 . . . . . . . 23 QUESTION 6 . . . . . . . 29

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QUESTION ONE Presidential Immunity: The President’s lawyers should use separation of powers principles to support their argument that a sitting President cannot be tried criminally while in office for decisions made in his official capacity. They can argue that a President will not be able to exercise his authority under Article II (in particular his authority to make sure, under the Take Care Clause, that federal laws are faithfully executed) if he is subject to criminal liability while serving in office. A criminal prosecution, which by definition would be overseen by the judiciary branch, of a sitting President for official actions would constitute an impermissible interference by the judiciary with the President’s constitutional powers. The President’s lawyers will argue that a President will not be able to fulfill his crucial and multifaceted responsibilities if he has to operate under the threat of criminal indictment. It is important that the President be protected from criminal liability during his term in office for making decisions in his official capacity. Presidents should have the authority to make the tough policy decisions that they believe are in the nation’s interests without having to worry about being criminally liable for those decisions while they are serving as Presidents. The President’s lawyers will want to emphasize that what is at issue in this case is the President’s authority under Article II to carry out his presidential powers, which includes the power to remove members of the executive branch such as the FBI Director. It is important that the judicial branch show deference to the President when he acts in his official capacity. Presidents must make difficult decisions affecting the nation’s well-being and security based on information that neither the judiciary nor the public are privy to. The courts must allow the President to make difficult policy decisions without the constant fear of being indicted by those who might disagree with his policy and personnel choices. In addition, the President’s lawyers will want to emphasize that their request for absolute immunity is limited to (1) the period that the President is in office and (2) for official acts. To accept the President’s position is not to accept the notion that the “President is above the law.” For example, if the President murders an acquaintance while in office (clearly not an official act), he could be charged and tried while in office. Also, the President’s lawyers are conceding that he can be prosecuted for official acts after he leaves office when there are no longer Presidential duties to fulfill. The argument for immunity is limited to instances in which the President acts in his official capacity (subject matter limitation) and for the period of his presidency (temporal limitation). The lawyers will argue that this is a reasonable way of protecting the President’s exercise of his constitutional obligations from intrusion by the judicial branch, while at the same time holding the President accountable for possible criminal conduct, even while exercising his official duties, after he leaves office. The President’s lawyers will want to rely heavily on Nixon v. Fitzgerald, in which the Supreme Court held that a President enjoys absolute immunity from civil liability for official actions taken while in office. The Court in that case emphasized the importance of allowing Presidents to make difficult and crucial policy decisions without fearing civil liability. The President’s lawyers will emphasize that if it is proper to be concerned about the effects of 3

possible civil liability on the making of difficult and important decisions that Presidents frequently make, then there is even more reason to be concerned with the danger that potential exposure to criminal liability might affect a President’s decisionmaking. In addition, the President’s lawyers will argue that since the Court in Fitzgerald held that Presidents are immune in perpetuity from civil liability for official decisions taken while in office, it is reasonable to grant them temporary immunity from criminal liability for those same decisions. The President’s lawyers will also want to distinguish Clinton v. Jones. In that case, the Court held that forcing a President to participate in a civil lawsuit would not unduly interfere with the fulfillment of the President’s responsibilities, in part because the litigation schedule could be arranged so as to minimize its impact on the President’s schedule. The President’s lawyers will argue that a criminal prosecution is different because its consequences are much more severe, and thus significantly more distracting to the President. The lawyers can also point out that Article II vests the federal government’s executive authority on the President and no one else. The first sentence of Article II reads “The executive power shall be vested in a President of the United States of America.” The decision of whether to prosecute a crime is a paradigmatic executive decision. As the head of the executive branch, it is ultimately for the President (or those to whom he has delegated that authority) to decide whether any particular criminal prosecution should be brought. Therefore, if the President does not authorize the prosecution, it cannot go forward even if the person being prosecuted is the President himself. The President’s lawyers will also argue that the Constitution’s impeachment process should be deemed the exclusive mechanism for punishing a sitting President through removal from office. The fact that the Constitution authorizes impeachment, while remaining silent on the criminal prosecution of sitting Presidents, means that the Constitution does not allow for the punishing of a sitting President in other ways. The Independent Counsel (IC) will rely on two Supreme Court cases to argue against the President’s lawyers’ immunity arguments. First, in United States v. Nixon, the Court held that executive privilege has its limits when weighed against other important interests. Similarly, presidential immunity should have its limits when weighed against other important interests. Here, there is the crucial interest in holding even the President of the United States accountable under the law. The IC will argue that United States v. Nixon stands for the proposition that no one, not even the President, is above the law. If other high officials of the executive branch, such as the Attorney General and the Secretary of Defense, can be prosecuted for committing crimes in their official capacity, then so should the President of the United States. A successful criminal prosecution of the President, overseen by the judiciary branch, is no more a violation of separation of powers than is the judicial striking down of actions by the President that are unconstitutional. See Marbury v. Madison. The very point of the Constitution’s separation of powers was not to invest too much power in any one branch. While the President should be free from civil suits for his actions in office (see Nixon v. Fitzgerald), allowing the President to be immune from criminal liability while he is in office would be giving the President undue power to violate criminal laws while 4

acting in his official capacity. This would be against the very nature of the Constitution given that the Founders wanted to distinguish betwe en a President’s limited powers and the unlimited powers of a King. Second, the Court in Clinton v. Jones rejected the idea that the President has absolute immunity while in office. In that case, President Clinton argued that separation of powers principles prevented the courts from forcing him to defend himself from a civil lawsuit that arose from events that took place before his presidency. The Court rejected that argument. In doing so, the Court did not believe that defending himself from a civil lawsuit would prevent the President from carrying out his constitutional duties. The same is true here. The President can defend himself from the criminal charge while continuing to serve as President. In addition, the IC could argue that the subject of investigation by the IC was for events that took place prior to President Smith being elected, thus making it analogous to Clinton v. Jones, in which the issues in question involved Clinton’s actions before becoming President. But the President’s lawyers will point out that the firing of the FBI Director, which constituted the basis for the indictment of President Smith, took place during the Presidency. As a result, Nixon v. Fitzgerald and not Clinton v. Jones should control. The IC will also want to point out that criminal prosecutions must be brought by the government, while civil lawsuits can be brought by anyone who has standing to sue. As a result, civil lawsuits are more likely to be numerous and frivolous, thus having a greater negative effect on the ability of the President to carry out his constitutional obligations than criminal charges that must be brought by professional prosecutors. The IC will have to distinguish Nixon v. Fitzgerald. The IC will argue that when a President goes so far as to violate a criminal statute (as opposed to “only” committing a civil wrong), it makes no sense to grant him absolute immunity during his presidency. Because of their importance, criminal laws must be obeyed by everyone, including by the President in carrying out his official duties. Otherwise, we end up with the dangerous situation of the President being above criminal laws. Here the IC will emphasize its concession that it would not ask that the President serve any possible criminal sentence in jail while he is President. The IC will argue that Congress’s authority to impeach the President and the criminal prosecution of the President address two different issues. Impeachment is about the possible removal of a federal official, including the President, for improper actions while in office. It is a political mechanism for removing a government official who has acted improperly and for restoring faith in government. In contrast, the question of whether the President has committed a crime is a legal judgment. The enforcement of a criminal statute is about the enforcement of the law. Just because Congress has the authority to impeach federal officials does not mean that those officials should be immune, while remaining in office, from criminal liability for official acts. The President on this issue should be treated no differently than any other federal official whose vulnerability to impeachment for certain conduct would not categorically exempt them from criminal prosecution for that same conduct.

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The IC will want to argue that although it is true that the decision of whether to prosecute someone for a federal crime constitutes the exercise of executive branch authority and that the President (obviously) is the head of the executive branch, no individual President should be allowed to decide whether a prosecution of himself should proceed; that would represent a clear conflict of interest. To allow the President to be the ultimate arbiter of whether he should be prosecuted criminally would, in effect, place the President “above the law.” The IC can also rely on the text of Article I, Section 3, Clause 7, relating to Congress’s impeachment power. That provision makes clear that impeachment is not the exclusive “check and balance” mechanism in cases in which federal officials have committed wrongs. Instead, that provision explicitly allows for the criminal prosecution of government officials of individuals who have been impeached when it states that “the Party convicted [following an impeachment] shall nevertheless be liable and subject to Indictment, Trial, judgment and Punishment, according to law.” This provision does not contain any exceptions, not even for the President. President’s Removal Power: [Note this exam question is from 2018, before the Supreme Court’s opinion in Seila Law v. Consumer Financial Protection Bureau.] In defending the constitutionality of the Presidential Integrity Act’s limit on the President’s authority to fire an IC, Congress will emphasize that the Supreme Court has upheld the constitutionality of limits on the President’s removal power in certain instances. In other words, the Court has recognized that the implicit power granted by the Constitution to the President to remove executive officials is not absolute. Specifically, Congress will want to point out that the Court in Morrison v. Olson upheld the constitutionality of a statute that limited the authority of the Attorney General to fire an independent counsel to instances in which there was a “good cause.” As in that case, the removal power under PIA remains with the executive branch. This is not an instance in which Congress has tried to grant itself the power to remove an IC, which would be unconstitutional. Furthermore, PIA does not strip the President of his authority to remove an IC altogether. It only limits that authority by requiring that the firing be done for “good cause.” This leaves the President with authority to fire Independent Counsels who have, for example, engaged in misconduct or have otherwise abused their positions. In addition, the Court in Morrison rejected the categorical rule that Congress violates separation of powers principles when it limits the exercise of the removal power in instances involving the exercise of “core executive functions,” such as the prosecution of crimes. In making these arguments, Congress will want to emphasize how important it is to protect the IC from the President’s otherwise unlimited power to remove executive branch officials in order to make sure that the IC has the necessary independence to conduct a full and truly objective investigation. Congress will also argue that the Presidential Integrity Act is less intrusive of the President’s authority than the Ethics in Government Act of 1978 (at issue in Morrison) because

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the new statute leaves the decision of whom to appoint as an IC in the hands of the executive branch. In contrast, under the earlier statute it was the judiciary that chose the special counsel. The President will want to emphasize the importance, under separation of powers principles, of not interfering with his removal power. Article II, Section 1, Clause 1 grants the executive power to the President and the President alone. In addition, Article II’s Take Care Clause grants the President the authority to make sure that federal laws are faithfully executed. As a result, courts should be highly skeptical of efforts to limit the ability of the President to enforce the laws in the ways that he deems best. The President will also want to distinguish Morrison because the statute at issue in that case granted the power to appoint the independent counsel to a special court. The President can argue that under the Morrison statute, the executive was already stripped of his ability to appoint the IC. It therefore made sense to also limit the authority of the executive branch to remove the IC. In contrast, as stated in the facts, the Presidential Integrity Act does not affect the executive branch’s ability (acting through the Attorney General) to appoint whomever it wants as IC. The President will argue that he should have the unfettered constitutional authority to remove an executive branch official who has been appointed by a member of the executive branch acting under his authority (again, the President will want to emphasize that the executive branch is vested in the President according to Article II, Section 1). As long as the appointment power remains entirely in the hands of the executive, so should the accompanying removal power.

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QUESTION TWO California’s Challenge to the Defense of Bathroom Privacy Act: California challenges Congress’s authority to enact the Defense of Bathroom Privacy Act (DBPA) under both the Commerce Clause and Section 5 of the 14th Amendment. The state will prevail in the latter claim because, as made clear in The Civil Rights Cases, the 14th Amendment only regulates state and local governments and does not apply to private actors. The Amendment’s state action requirement means that Congress cannot seek to enforce the provisions of the Amendment through Section 5 by enacting legislation that regulates private action. Given that the DBPA only regulates private actors, Congress lacked Section 5 authority to enact it. In disputing that Congress had Commerce Clause authority to enact the DBPA, California will argue that using bathrooms in places of public accommodation does not constitute commercial activity. Using the bathrooms does not involve either manufacturing, transportation, or purchasing of items that are in the flow of interstate commerce. People use the bathrooms in question while patronizing commercial establishments in order to perform basic biological functions that have nothing to do with commercial activity. In addition, California will argue that bathroom use does not have a significant effect on interstate commerce. Which patrons get to use which bathrooms has no impact on interstate commerce. Requiring “biological males” to use men’s bathrooms and “biological women” to use female bathrooms does not affect interstate commerce in any way. As such, this issue is distinguishable from the Commerce Clause cases brought by private business owners who refused to serve African Americans challenging the constitutionality of the Civil Rights Act of 1964. Those refusals affected intersta...