Sample Final Examination: Constitutional Law Federal and State Power Relationships
Spring 2000 Professor Kmiec Total No. of Questions: 2 Time:
QUESTION I
Assume that Congress passes the Federal Labor Standards Act, codified at 29 U.S.C. 201 et. seq. Relevant sections of this Act provide: Section 201. "As used in this chapter-a. "Person" means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons. b. "Commerce" means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof. c. "State" means any State of the United States or the District of Columbia or any Territory or possession of the United States. d. "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, . . . e. (1) Except as provided in paragraphs (2) . . ., the term "employee" means any individual employed by an employer. (2) In the case of an individual employed by a public agency, such term means--' (C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual-I. II. who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and who-I. holds a public elective office of that State, political subdivision, or agency."
Section 207. "(a) Employees engaged in interstate commerce (1) . . . No employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, or that affects commerce, for a workweek
longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." Section 216. "(a) . . . (b) Any employee may bring an action for unpaid wages as a result of violations of this chapter against any employer (including a public agency) in any Federal or State court of competent jurisdiction . . ." Section 217. The district courts, . . .shall have jurisdiction, for cause shown by the Secretary of Labor, to restrain violations of this title, including in the case of. . . any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter. . . .. California probation officers (who handle the supervision of matters relating to the probation and parole of criminal defendants in the state penal system) argue that they are entitled to overtime pay pursuant to section 207, but that the State of California has not paid the officers at the rate provided under that section. A cause of action is filed by the probation officers in federal district court against the California Commissioner of Corrections and the State of California for unpaid wages. Admitting that it is not in compliance with the federal statute because it compensates senior probation officers (those with more than 10 years experience) in their choice of either additional compensation or time off and compensates junior probation officers only in additional time off or "compensatory time," the State hires you defend it. The State Attorney General asks you to make the arguments listed below. Analyze each argument in light of the materials assigned and discussed in our course on Federal-State relations, evaluating arguments for and against each position, and advising the State of California whether you think it will prevail under existing constitutional jurisprudence. A. The Labor Act as applied exceeds the enumerated commerce power of Congress under Article I of the U.S. Constitution. Probation officers are not involved in interstate commerce (channels, instrumentalities, or economic activity), per Lopez. However, Lopez has not been followed into other areas, and under pre-Lopez case law, commerce might be said to be substantially affected by inadequate supervision of parolees. B. The Labor Act as applied violates Amendment X of the U. S. Constitution.
This is a traditional state function, National League of Cities; however, NLC has been overruled by Garcia, suggesting that what constitutes a traditional state function must be determined in the political process. Nor is there any commandeering in the Printz sense, since in Printz, state courts were specifically distinguished pursuant to the earlier ruling in Testa v. Katt, finding that state courts had voluntarily acceded to general jurisdiction as part of the federal structure, unlike state administrative and legislative officers that cannot be singled out for specified federal duties without their consent. C. This cause of action for unpaid wages as a result of violations for the Labor Act is not justiciable in an Article III court because of Amendment XI. Seminole Tribe; no abrogation pursuant to the commerce power; overruling Union Gas. While this may be claimed to be an equal protection violation (senior vs. junior officer differential), there is a rational basis for treating senior and junior personnel differently (reward for service; state budgetary limits), therefore under rational basis test no equal protection violation, and therefore, unlikely to be able to abrogate under section 4 of the 14th Amendment. Ex Parte Young exception allows a suit for prospective, injunctive relief in federal court against a state officer in order to prevent a continuing federal wrong. Here, Ex Parte Young is not applicable because it is a suit for money damages. Had it been a suit to direct the Commissioner to comply in the future, Ex Parte Young might apply. However, Seminole Tribe found Ex Parte Young would not apply where the Congress envisioned a particular remedial scheme. Here, the statute authorizes only the Secretary of Labor to file suit for injunctive relief. D. A cause of action alleging violations for the Labor Act is not justiciable in state court because of Amendment XI. While the 11th amendment is not directly applicable in state courts; state sovereign immunity is; Seminole Tribe recognized that each State is a sovereign entity in our federal system and that it is inherent in the nature of sovereignty not to be sued without one’s consent. The purpose of the 11th amendment is to avoid indignity to the State by subjecting it to coercive judicial tribunals at the hands of private parties. That indignity is not lessened by being subject to suit in one’s own courts. If Congress lacks power to abrogate sovereign immunity in federal court, then it lacks similar power to abrogate in state court. This is the argument that prevailed in Alden v. Maine. Counter: the 11th amendment does not define state sovereign immunity; the 11th amendment onlyprecludes expansion of Article III jurisdiction; the Supremacy clause governs the application of the Labor Act in state court.
QUESTION II
John Doe was a high-ranking intelligence officer for the Central Intelligence Agency charged with overseeing intelligence gathering with respect to the United State’s ongoing disagreements with Iraq over chemical weapons inspections. Doe was detailed to the White House over the last several months to assist and advise the President with Iraqi matters. During the course of that detail, and in casual discussion over dinner, Doe disclosed to the President (with the Director of the CIA present) that Doe had engaged in an extramarital affair with an intern in the secretarial services department. Shortly thereafter, it was publicly reported that the CIA Director and the President were in disagreement over the nature of what course to follow in Iraq. According to reports, Doe and the President favored giving Iraq another chance to comply with UN inspectors, while the CIA Director favored immediate military intervention. A week after the President sided with Doe over the Director, the Director fired Doe. Assume the following provisions exist in Title 5 of the U.S. Code and are intended by Congress to apply to all federal agencies: Section 706. "Scope of judicial review of agency action "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-1. compel agency action unlawfully withheld or unreasonably delayed; and 2. hold unlawful and set aside agency action, findings, and conclusions found to be-A. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; B. contrary to constitutional right, power, privilege, or immunity; C. in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; D. without observance of procedure required by law." Section 701. "Section 706 of this Title applies to any federal agency, except to the extent that: 1. statutes preclude judicial review; or 2. agency action is committed to agency discretion by law." Assume the following provision in Title 50 of the U.S. Code applies only to the Central Intelligence Agency:
Section 102. "Notwithstanding the provisions of any other law, the Director of Central Intelligence, may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States." Section 103. The decisions of the Director under section 102 of this Title shall not be subject to review in the district or appellate courts of the United States. Analyze the following questions: A. The President directs the Director to reinstate Doe. When the Director refuses, he is dismissed by the President and Doe nominated by the President as the new CIA Director. Is the Director’s dismissal subject to judicial review if the Director files suit in federal district court? No, Myers v. U.S. is the dispositive precedent. The President has the power of removal of purely executive officers. The CIA Director is surely that. This is doubly true here where the matter involves foreign affairs. Curtiss-Wright. The reason for unfettered removal authority is the effective performance of executive function ("to take care that the laws are faithfully executed") insured by adequate oversight and accountability. Some officials, with a narrower scope of authority or more limited term or who are inferior officers, as that term is understood under the appointments clause (e.g., appointed by a head of department or court of law without Senate confirmation), may have their removal limited for reasons of "good cause." B. Assume that the Director does not file suit, but instead complains to the Senate Intelligence Committee, which as part of its on-going oversight function looking into US-Iraqi policy demands that the President turn over to the committee for review all letters, memoranda, and other written documentation relating to the dismissal of the CIA Director. Must the President comply with this request for documentation? No, executive privilege would shield the information since it was so clearly within the range of Article II functions. C. Assuming that you conclude the President is not subject to either judicial review or Senate oversight, is the President’s posture in any meaningful way different from that of James I as Coke reported them in the Prohibitions Del Rey? As you compare the President with the King, briefly describe the Prohibitions Del Rey.
The Prohibitions Del Roy was a colloquy between James I and Coke over whether the King was subject to the judgment of the common law courts. These common law courts held to the letter of the law as it had been accumulated over the centuries and had been compiled by Bracton and others. Coke argued that the King was bound by these legal precedents and could not just use discretion or "prerogatives" to set them aside. Coke issued restrictions or prohibitions on the King’s High Court, but the King argued that judges were merely delegates of the King and could not bind him. Coke said the King could not be his own judge or interfere directly into court proceedings. The King disputed this arguing that law is founded on reason and that he possessed this reason. The King he insisted was under only God, not law. Coke argued the King to be under God and Law. Arguably, the President need not make the sweeping arguments of the King to prevail. It is enough to say that Law, the Constitution, gives him the power to remove as well as to be the sole organ of foreign policy. This is not in defiance of the law so much as it is carrying out its specific applications. So too there is no evidence here of the President seeking to remove or coerce judges (which under the Constitution are independent of the executive). The protections of executive privilege, while not absolute, have been indicated as protecting the President where national security is implicated, so again, refusal to comply with the present document request is not unlawful, but in furtherance of the law. D. Assume now a change in facts. Specifically, assume that the President has not fired the Director for the Director’s firing of Doe. Doe, however, has filed suit against the CIA in federal district court seeking reinstatement. Doe alleges that his dismissal for a private sexual matter is both an arbitrary and capricious agency action and a violation of his constitutional right of due process and privacy. Without evaluating the substantive merits of either Doe’s arbitrariness or constitutional claims, is Doe under the above statutory provisions able to raise these claims in federal district court, and if not, are the above statutory provisions, themselves, unconstitutional? By the terms of terms of section 102, the CIA Director has absolute discretion for the dismissal of employees. Section 701, thus, indicates that the action is committed to agency discretion by law. It is constitutional to deny judicial review in this fashion since Article III expressly provides that the Supreme Court’s appellate review is subject to exceptions that Congress shall make. In addition, no review is guaranteed in federal appellate or district courts since these are entirely subject for their creation as well as jurisdiction to the Congress. Beyond this, the court could draw upon an analogy to the political question doctrine where judicial review is foregone where matters are committed by the constitution to another branch (as foreign policy is) and there are no manageable judicial standards to apply. Hence, the agency’s alleged arbitrariness is not subject to review. However, it is less clear whether the statutes do, or could, preclude colorable review of constitutional claims made by Doe. Assuming the statutes do mean to
deny all review of constitutional claims arguably that should be done more explicitly, and construed narrowly. E. Assume section 103 read: "The decisions of the Director under section 102 of this Title shall not be subject to review in the courts of the United States or of the several states." Would this statute be constitutional? The statute here denies all review, not only review in the lower federal courts. In other words, the revised section 103 eliminates review in the state courts, too. While nominally, the federal government has no direct control of state court jurisdiction, the federal government does have the ability to preempt state law pursuant to a proper exercise of its power and the Supremacy Clause. The nature of the subject matter here is foreign affairs and national security, areas fairly capable of preemption against competing state law interests, such as a wrongful termination lawsuit. Ex parte McCardle might be cited, though the case is not a perfect precedent since it did not deny all review only one means of habeas review. However, given the political question doctrine especially in the foreign affairs context and other provisions of the constitution that give no judicial remedy (e.g., the House is the Judge of the Elections, Returns and Qualifications of its own members, Art. I, sec. 5), one can make a plausible case that Mr. Doe has no remedy. Indeed, some justices might aggressively argue that for Congress to give remedy in a foreign affairs case like this would violate the separation of powers, and the president’s executive authority, since the discovery involved would inevitably intrude into executive/intelligence decision making and selective applications of executive privilege might be inadequate to protect this assigned constitutional function.