FINAL EXAMINATION/SAMPLE ANSWER

Constitutional Law Powers

Professors Iijima & Kirwin

December 13, 1993

COMMON FACT SITUATION FOR ALL QUESTIONS

[NOTE: Following are facts common to all three questions in this exam. Although these facts may suggest issues of Constitutional Law--Liberties, the questions following it are confined to Constitutional Law--Powers issues. Please make sure that your answer to each question includes only material that responds to that question.]

Section 464 of the Act provides that every employer employing more than 100 employees must participate in either Option A or Option B:

Option A: The employer offers each employee a choice of at least three private health care plans meeting certain minimum requirements (for example, a plan operated by an insurance company, a plan operated by a health maintenance organization (HMO), or a plan operated by the employer itself. If an employee declines to choose, the employer enrolls the employee in the least expensive plan offered. The employer pays, on behalf of each employee, an amount equal to 50% of the premium of the least expensive plan offered.

Option B: The employer enrolls each employee in the Mitchell State Basic Health Plan, operated by the Mitchell State Health Department. The employer and the employee each pay 50% of the premium. The total premium will not exceed the cost of the least expensive private plan that meets the specified minimum requirements. The Mitchell State Basic Health Plan is available only to employers for their employees; it may not be purchased by individuals.

Section 406(27) provides that the Mitchell State Health Department, charged with administering the Act, will make recommendations to the governor and legislature before December 1, 1994, as to how seasonal workers and their employers may be brought under the provisions of the Act, with particular attention to the financial impact on seasonal workers and their employers. Until this study is completed and the legislature takes affirmative action, section 464 does not apply to seasonal workers or their employers. Section 402(22) specifies:

"Seasonal worker" means any person (a) employed in food processing, agricultural production, agricultural harvesting, plantation Christmas tree planting, and tree planting on timber land; (b) whose current employment is expected to last six months or less; and (c) whose residence 30 days before commencing the employment was outside of the county where the person is employed.

The effect of sections 402(22) and 406(27) is to deny coverage to migrant workers. The Act covers almost all other employees, whether temporary or year-round. The legislature's official position was that the exclusion of migrant workers is one of practicality: the very nature of the seasonal employment cycle and conditions makes providing coverage under an employer-based health care system a complicated matter. However, there may have been other reasons. Legislators in agricultural districts insisted on the exemption for their farmer-rancher constituents in exchange for their votes in favor of the bill. It might be noted that while people of Hispanic descent represent about 4% of Mitchell's population, they represent about 90% of the state's migrant worker population.

QUESTION #1 (40%)

I. Question #1 - Sample Answer

A. Does Constitution Give State of Mitchell the Power to Enact the Mitchell Universal Health Care Act?

1. Under 10-A, states have powers not delegated to the U.S. nor prohibited by it to the States. These "reserved powers" include police powers such as the protection of public health & safety, the public coffers, & property values.

2. Here, Mitchell, in enacting the Act, has an interest in protecting public health, one of the most important state interests.

3. In terms of the migrant worker exclusion, Mitchell claims an interest in practicalities, or convenience. (There is no real argument that the exclusion serves to protect the health of migrant workers, although studies are required.) The interest in convenience would be a "legitimate" state interest, although not as compelling as the interest in health.

4. Conclusion: At least as an initial matter, 10-A probably empowers Mitchell to adopt the Act, and probably also empowers Mitchell to adopt the exclusion. Other constitutional considerations may limit this power, however.

B. Do Constitutional Grants of Power to Other Governmental Bodies Limit Mitchell's Power?

1. Article I, section 8 provides that "Congress shall have Power To . . . regulate Commerce with Foreign Nations, and among the several States."

a. A question arises whether Congress' commerce clause powers limit Mitchell's authority to regulate health care as it has.

b. The Commerce Clause is implicated, because it is at least arguable that the Act has some impact on interstate commerce.

(1) Interstate commerce has been broadly interpreted. It includes the movement of people into and out of the state, regardless if the movement is for commercial purposes.

(2) The inability of migrant workers to obtain health care may discourage their movement into the state of Mitchell, thereby interfering with interstate commerce.

2. If the Act were in contravention of any federal law, it would be unconstitutional under the Supremacy Clause (Article VI). In this situation, Congress has not yet "spoken," i.e., it has not yet regulated in the area of universal health care, therefore there is no prohibited conflict.

a. Under the dormant Commerce Clause, the Court uses different test to determine constitutionality depending upon whether the state regulation discriminates against, or merely interferes with interstate commerce.

b. Does the Act discriminate against interstate commerce?

(1) On its face, the Act excludes persons "whose usual place of abode 30 days before commencing the employment was outside of the county wherein the person is employed." Although the distinction is movement between counties rather than movement between states, this is not determinative, because the regulation still interferes w/ i.c. by curtailing movement through state subdivisions. See Fort Gratiot Sanitary Landfill, Inc. V. Mich. Dept. of Natural Resources, p. 307 of text. Therefore, the Act uses discriminatory means.

(2) The Act may also have discriminatory ends, i.e. its purpose is to discriminate against interstate commerce. Here, the Act may purposefully withhold health care from migrant workers, thereby discouraging them from coming into the state.

(3) Because the Act discriminates against interstate commerce, the standard of review would probably be either the justification test used in New Energy and Wyoming v. Okl. or the strict scrutiny test used in Hucthes v. Okl. Under either test, the Court would ask two questions:

(a) Was there a legitimate local purpose?

Here, the legitimate local purpose would be the idea of convenience. A purpose to discourage interstate commerce would not be within the State's reserved powers. If the State's purpose was to discriminate against Hispanics, this also would not be within the State's reserved powers.

(b) Could this purpose be served by nondiscriminatory means? Yes, the state could exclude all employees whose work is not yeararound, not just those that came in from another county.

The Act would probably violate the Commerce Clause under this analysis.

(c) If the Act were found not to be discriminatory, would it still violate the Commerce Clause?

(1) The Court probably would use one of two tests, the rational basis test, or, more likely, the Pike V. Bruce Church balancing test.

(2) Rational basis test:

(a) Does the State have legitimate interests? Once again, the legitimate local purpose would be convenience.

(b) Were the means chosen, i.e., the Act, rationally related to the purpose of convenience? Yes, the exclusion of the migrant workers would tend to make the Act easier to administer. (The Court is very deferential to the State's choice of means.)

(3) Balancing test

(a) Nature & extent of burden

i) The Act does not prohibit the movement of migrant workers into the state, it only discourages such movement.

ii) Modern cases, however, hold that even a slight, indirect burden on i.c. may be sufficient to violate the commerce clause.

(b) Balance state and national interests.

i) The state's interest in convenience is not as compelling as other state interests would be, e.g., public health.

ii) The national interest would be in protecting i.c.

(c) It is likely that the Act would be violative of the Commerce Clause under the balancing test because of the weakness of the state's interests. Also, the possibility of illegitimate interests excluding migrants or discriminating against Hispanics could increase the Court's discomfort with the Act.

4. May the State of Mitchell use the market participant doctrine to shield the Act from a Commerce Clause challenge?

a. Under the market participant doctrine, when states are not regulating the market, but rather are participating in the market, they can constitutionally discriminate against interstate commerce. States have a sovereign interest in being able to decide with whom, and for whose benefit to deal.

b. Here, the State of Mitchell arguably has become a market participant in that it is providing its own health care plan as one of the options.

c. The counter argument would be that because the migrant worker exclusion is applicable to other health care plans, the market participant doctrine should not be applicable.

QUESTION #2 (40%)

On September 1, 1993, Anita Alvarez, Bonita Baez, and Carlos Chavez filed a federal district court lawsuit against the Mitchell State Department of Health and its director, Nora Nightengale. Alvarez, an Arizona resident, worked for Presidio Produce Company at its vegetable canning pl-ant during the months of June, July and August of each of the past ten years. Baez, a resident and citizen of Mexico, worked at that plant from June through August of 1993. Chavez resided in the State of Mitchell's Jefferson County on September 1, 1993, but moved to Adams County on December 1, 1993. Chavez had not worked for Presidio in the past.

Presidio has 200 year-round employees and has additional employees during the peak canning months of June, July and August. Its canning plant is located in Mitchell's Adams County. All three Plaintiffs alleged that they plan to work at that plant from June 1 through August 31, 1994 and would be subject to the Act's seasonal worker exclusion.

Plaintiffs seek both past and future relief. For past relief, Plaintiff seeks payment of the difference between (1) the amount that it would have cost him or her to secure comparable coverage from June 1 through August 31, 1993 and (2) the amount the Plaintiff would have had to pay if covered by the Act.

For future relief, Plaintiffs seek an injunction against the operation of the Act unless and until it is expanded to cover seasonal workers equally with all other workers in the State of Mitchell.

As alternative future relief if the Act is not enjoined, Plaintiffs request that Defendants make future payments of the difference between (1) the amount that it will cost each Plaintiff while working for Presidio to secure his or her own comparable coverage after June 1, 1994 and (2) the amount each Plaintiff would have paid if covered by the Act.

Please discuss the extent to which the federal district court should allow each Plaintiff to press his or her claims and obtain the requested relief if the Act violates the federal Constitution.

II. QUESTION #2 - SAMPLE ANSWER

1. Under Article III, section 2, federal courts have power to cases, in law & equity, arising under the federal constitution, laws, and treaties, among others. Here, the federal court would have the power to hear the cases only if the plaintiffs could raise a federal question. For example, if the claims were based on violation of the Commerce Clause, their cases would arise under the federal constitution.

2. Under Article IIII, section 2, Congress may limit the jurisdiction of the lower federal courts. We have no facts indicating that this is the case, so we may assume that the federal district court has jurisdiction.

3. Sovereign immunity issues

a. Under the Eleventh Amendment, federal courts do not have jurisdiction over suits against one of the United States by Citizens of another State. The Supreme Court has extended sovereign immunity to suits brought by citizens against their own States.

b. Here, the defendants are the State Department of Health and Nora Nightengale, the Department's director.

c. Suit against State Department of Health: A state agency or department is considered an arm of the state, and thereby protected by 11-A.

d. Suit against Nightengale:

(1) A state official acting in her official capacity generally is protected by 11-A.

(2) However, under the Young stripping doctrine, the official loses her official capacity, and is considered in her private capacity, if her actions are challenged on the basis of federal law.

(a) Here, the challenge is based on the federal constitution, so Nightengale would not have the protection of 11-A.

(b) An exception would be if the relief sought from Nightengale would be paid for by the State, thereby making the state the real, substantial party in interest if that were the case, sovereign immunity would apply.

(3) State officials may be liable for retroactive monetary relief (damages), as long as the damages come from the official's private assets.

(4) State officials may be liable for prospective injunctive relief, even if such relief will cost the state substantial sums of money.

e. Has the State of Mitchell waived any applicable sovereign immunity?

(1) There is no evidence that Mitchell has expressly made itself liable to its citizens for such suits.

(2) It is arguable, however, that by ratifying the federal constitution, Mitchell has adopted the Commerce Clause, thereby making waiving its sovereign immunity from suits based on violations of the Clause. The question is whether or not any such waiver is sufficiently unequivocal. It is more likely that a court would find waiver as to injunctive relief than as to damages payable by the state.

B. The success of the various Plaintiffs depends partly on their particular situation, and partly on the type of relief requested. Each Plaintiff has asked for the following relief:

1. Past Relief

Damages: difference between the amount it would have cost plaintiff to secure comparable coverage from June 1 through August 31, 1993, and the amount plaintiff would have had to pay if covered by the Act.

2. Future Relief

a. Injunction against operation of Act

b. Damages for future expenses incurred

C. Anita Alvarez

1. Description: a citizen of Arizona, during the months of June, July, and August of each of the past ten years was employed by Presidio- Produce Company at its vegetable canning plant located in Mitchell's Adams County.

2. Past relief for damages:

a. Standing:

(1) Does Alvarez have an injury-in fact? Yes, she already has suffered a monetary injury through having to pay more money for health insurance than similarly situated employees who were not migrant workers.

(2) Was there causation? Yes, Alvarez's monetary injury flowed directly from the provisions of the Act making her ineligible for the employer-funded health care plans.

(3) Is her injury redressable by the court? Yes, the award of monetary relief would directly redress her claim.

(4) This is neither a third-party claim nor a taxpayer claim, so there would be no prudential obstacle to her standing on this claim.

3. Future relief for damages:

a. Standing:

(1) Does Alvarez have an injury in fact? This is questionable. It is speculative whether or not Alvarez would be harmed by the operation of the Act in the future.

(a) Alvarez, despite her intention to work in the State of Mitchell, may not actually do so. Although the fact that she has done so for the past ten years is evidence of the likelihood of her doing so, it may not be sufficient. The Court in Lujan required some affirmative action, such as the arranging of transportation.

(b) If Alvarez were to work in Mitchell in the future, she may no longer f all within the exception, because she may have been in the county for a sufficient period of time.

(c) The State of Mitchell may include migrant workers within the provisions of the Act at some point in the future.

(2) Causation - If there is no injury in fact, there is no argument that the challenged action caused the injury. If the court were to accept the future damages as an injury in fact, the causation issue would be argued in a manner similar to that argued for past damages.

(3) Redressability - If there is no injury in fact, there is no viable question whether that action can be redressed by the relief sought. If the court were to accept the future damages as an injury in fact, the redressability issue would be argued in a manner similar to that argued for past damages.

b. Is the claim for injunctive relief ripe?

Because any injury from the future application of the migrant exemption is purely speculative at this point, there is a strong likelihood that this claim is not yet ripe for adjudication. There is no concrete dispute or threat of harm because no right of Alvarez has yet been infringed on by the state.

4. Future relief for injunction against operation of Act:

a. Standing: See standing arguments re future relief for damages.

b. Is the claim for injunctive relief ripe? See ripeness arguments re future relief for damages.

c. Additionally, injunctive relief is generally available only where:

(1) There is a likelihood of substantial & immediate irreparable injury.

Here, it would be difficult to show that such injury would be likely. The arguments regarding the speculative nature of the injuries made in the standing & ripeness sections would be applicable to this issue.

(2) Any remedies at law would be inadequate. To the extent that such injury were likely, the defendants could argue that monetary relief would be sufficient. Plaintiffs could argue that the inability to obtain health insurance created more than monetary damages, for example, the emotional stress.

D. Bonita Baez

1. Description: a citizen & resident of Mexico, was employed at that plant from June through August of 1993.

2. Standing & ripeness: One major distinction between Baez and Alvarez is that Baez only worked for Presidio in 1993. Therefore, while she has a strong claim as does Alvarez for past monetary damages, her claim for future relief is weaker because of the weaker evidence of likelihood of working for Presidio in the future. While the likelihood that Alvarez will work for Presidio in the future is not established by her past employment pattern, it has some evidentiary significance.

3. Another important distinction between Baez and Alvarez is that Baez is a citizen of Mexico. We did not discuss the standing of a noncitizen to raise constitutional challenges to state actions. (In general, aliens are not protected by guarantees applicable to "citizens," but are protected by those applicable to "persons.")

E. Carlos Chavez

1. Description: was a resident of the State of Mitchell's Jefferson County. Shortly after the lawsuit was commenced, Carlos moved to Adams County. Has never worked for Presidio Produce.

2. Past relief for damages:

Standing:

Does Chavez have an injury in fact?

Past damages - One major distinction between Chavez and the other plaintiffs is that Chavez has never worked for Presidio. Therefore, he does not have standing to claim past damages. There has been no injury-in-fact.

3. Future relief for damages:

a. Standing:

Does Chavez have an injury-in-fact? This is even more speculative than the claims of the other plaintiffs. Because Chavez has not worked for Presidio, his claim for future relief is not evidenced by a past employment pattern, and any argument for an injury-in fact is quite weak.

b. Is the claim for injunctive relief ripe?

Similarly, any injury from the future application of the migrant exemption is more speculative for Chavez than for the other plaintiffs. There is very little evidence he will work for Presidio in the future.

4. Future relief for injunction against operation of Act:

a. Standing: See standing arguments re future relief for damages.

b. Is the claim for injunctive relief ripe? See ripeness arguments re future relief for damages.

5. Another major distinction between Chavez and the other plaintiffs is that Chavez is now a resident of Adams County, and, barring future moves out of Adams County, will not be subject to the migrant worker exclusion should he seek employment with Presidio. Therefore, his claim for future relief is even weaker.

a. Standing: It is improbable that he will suffer any harm from the migrant worker exclusion, so proof of an injury-in-fact is unlikely. No standing.

b. Ripeness: There is no concrete dispute or threat of harm because no right of Chavez has been (or probably will be) infringed on by the state.

c. Additionally, any claim that Chavez might have had may have been mooted by his move to Adams County.

QUESTION # 3 (10%)

Please discuss the extent to which the issues and results regarding Baez in Questions I and 11 would be different if there were an agreement between the United States and Mexico forbidding employment discrimination against each other's citizens?