1. For anonymity, use your assigned test number which was mailed to you.

2. Put your test number on this page and on all bluebooks.

3. If you do not know your test number, you may obtain it at the Communication Center or in the Records Office (Cindy Boyum) during the first 30 minutes of the exam period.

4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.

5. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.

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STUDENT CONDUCT CODE

IT IS A VIOLATION OF THE CODE:

1. To use any sources which are forbidden by the instructor

to complete an exam.

2. To submit as one's own work the work of another.

3. To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.

Knowledge of any violation should be promptly reported.

VIOLATION OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION

OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.

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GRADUATING SENIORS: IF YOU ARE A GRADUATING SENIOR, NOTE THIS FACT ON ALL BLUEBOOKS AND THIS EXAM PAPER. DO SO CONSPICUOUSLY.

TYPING AREA: If you are going to type your examination, the typing area is located in the Board Room. You must return the exam to this room at the conclusion of the exam period.

SPECIAL INSTRUCTIONS

1. This is an open-book examination. You may use your textbooks, notes, and student-prepared outlines. You may not use commercial outlines (e.g., Emmanuels, Legal Lines), treatises, etc.

2. The exam has two questions. Each answer will be graded separately and so must stand by itself. Thus, do not rely upon, or refer to, anything in any other answer. You may refer to points made within any single answer.

3. The questions are of unequal weight (40%, 40%, & 10%). Please divide your time accordingly. Additionally, 10% of your grade will be based on clarity and organization of analysis.

4. Please discuss all issues reasonably presented, even if resolution of some alone would resolve the problem. Specify all grounds and reasons which support your conclusions, including alternative grounds and possible contrary arguments.

5. If you think that, with respect to any particular issue, there are insufficient facts to warrant drawing any conclusion, please indicate what kinds of additional facts would be relevant and why.

6. If you think that any of the statements of fact contain an ambiguity, please resolve the ambiguity for yourself, indicating briefly the nature of the ambiguity and your resolution.

7. Discuss only Constitutional Law Powers issues, i.e., do not discuss contract or tort claims, etc., that we did not specifically discuss in Constitutional Law Powers.

8. Nuts and Bolts - Please:

a. Write on one side of each page only.

b. Type or write with a pen.

c. Use complete sentences.

d. Begin each question in a new bluebook. Clearly label each bluebook with your examination number and the question number.

e. Write legibly -- if I cannot read it, I cannot give you credit for what you have written.

FAILURE TO FOLLOW THESE DIRECTIONS WILL RESULT IN LOST POINTS.

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.]

Although the federal government currently is considering a potential federal statute providing universal health care coverage, because the problem is so critical the legislature of the State of Mitchell decided to deal with the problem at the state level. It enacted the Mitchell Universal Health Care Act ("the Act"), effective on April 1, 1993.

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%)

Does the Act violate the parts of the federal constitution studied in our Constitutional Law Powers course? (Please discuss only Constitutional Law--Powers issues, not Constitutional Law--Liberties issues).

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 plant 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, each 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.

QUESTION # 3 (10%)

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