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Fact Pattern

The U.S. Congress enacted the Save Our Rivers Act (the Act) to restore and
maintain the quality and purity of the nations waters, and to eliminate the
excessive discharge of pollutants into the nations navigable waters, including
rivers and creeks. Under the Act, no one may discharge pollutants into navigable
waters, absent a permit from the Environmental Protection Agency (EPA). The
Act has a citizen-suit provision, which authorizes private citizens to bring
lawsuits to enforce the Acts other provisions.
Company A owns a factory located near a creek. That factory has been
discharging certain pollutants into the creek, pursuant to a permit issued by the
EPA. Another entity, Company B, has a plant located near the same creek. This
plant also discharges pollutants into the creek, pursuant to another EPA permit.
There are no other entities discharging pollutants into the creek.
A plaintiff, a private citizen, sues Company A in federal district court, pursuant to
the Acts citizen-suit provision, for violating the terms of the EPA permit. The
complaint alleges that Company A has been discharging more pollutants into the
creek than the EPA permit allows. On that basis, the plaintiff seeks an injunction
from the court prohibiting Company A from exceeding the discharge limits
indicated in the permit.
Along with the complaint, the plaintiff files an affidavit stating the following:

1. I reside approximately 1,000 miles from the creek.


2. I take annual trips to swim in and camp along the creek, and I
plan to return to the creek six months from now.
3. During my upcoming trip, I will refrain from drinking water
from the creek, because the pollutants in the creek might harm
my health. To satisfy my water needs during the trip, I
purchased 50 bottles of water.

Company A files a motion to dismiss the lawsuit, on the grounds that the plaintiff
lacks standing to sue under Article III of the U.S. Constitution.

Questions
1. How should the district court decide the motion? Explain,
discussing only the basic elements of standing under Article III,
but do not consider prudential standing.

Question 1
How should the district court decide the motion? Explain, discussing only
the basic elements of standing under Article III, but do not consider
prudential standing.
The issue is whether the plaintiff has satisfied the requirements for standing
under Article III of the U.S. Constitution. The answer is no.
Under Article III, a plaintiff must have standing to invoke a federal courts
jurisdiction. Although the Act contains a citizen-suit provision allowing privatecitizen plaintiffs to sue to enforce its other provisions, that alone is insufficient to
confer Article III standing on the plaintiff here. To meet Article IIIs
requirements, the plaintiff has the burden to establish the following three
elements: (1) the plaintiff must have suffered an injury in fact; (2) the defendants
actions must have caused the plaintiffs injury in fact; and (3) the requested relief
must be likely to redress the plaintiffs injury in fact.

I. Injury in Fact

To satisfy the injury-in-fact requirement, the plaintiff must have incurred (1) an
actual or imminent injury that is (2) concrete and not speculative. Here, while the
plaintiff can establish an imminent injury, she cannot establish a concrete injury,
so the injury-in-fact requirement fails.

Any injury the plaintiff might suffer from visiting the creek is imminent.
For an injury to be imminent, it must be certainly impending. Although the
plaintiff lives 1,000 miles from the creek, she has definite plans to return to
the creek in six months. This is distinguishable from Lujan v. Defenders of
Wildlife, where the U.S. Supreme Court dismissed a case for lack of
standing where the plaintiffs had only vague intentionsnot definite plans
to visit the sites in question. Unlike the plaintiffs in Lujan, the plaintiff
here takes annual trips to swim in and camp along the creek, and she has
definite plans to return. Accordingly, whatever injury she might suffer due
to pollutants in the creek is imminent.
Although the plaintiffs injury, if any, is imminent, it is speculative. The plaintiffs
affidavit states that drinking water from the creek might harm her health. But
there are no additional allegations in the complaint to substantiate this
speculative harm by providing facts showing that the water is actually unsafe to
drink.
To counter this argument, the plaintiff will contend (incorrectly) that she suffered
a concrete, monetary injury, in that she had to purchase 50 bottles of drinking
water to use during her trip. Although an injury in fact can be based on monetary
harm, a plaintiff cannot manufacture standing by choosing to inflict financial
harm on herself and undertaking costly measures to avoid future harm that itself
is merely speculative.

This case is analogous to Clapper v. Amnesty International. There, the


U.S. Supreme Court dismissed a case for lack of standing, even though the
plaintiffs had incurred costly and burdensome measures to protect the
confidentiality of their communications against government surveillance.

The Clapper Court concluded that, because the threatened harm of


government surveillance was itself speculative, the plaintiffs could not rely
on costs incurred to avert that speculative harm to establish injury in fact.
Similarly, the plaintiff here cannot rely on the costs she incurred in
purchasing 50 bottles of water to avert any speculative injury she might
incur by drinking water from the creek.
Accordingly, although the plaintiffs injury (if any) is imminent, it is speculative
and not concrete. As a result, she fails to satisfy the injury-in-fact requirement.

II. Causation
The second element of Article III standing is causation, which fails here. For this
element to be satisfied, the plaintiffs injury must be fairly traceable to the
defendants actions. In this case, the pollutants in the creek are traceable to the
actions of two entities, Company A and Company B. Although both are
discharging pollutants into the creek, the plaintiff chose to sue only Company A.

To establish causation under these facts, the plaintiff apparently relies on


the Supreme Courts decision in Massachusetts v. EPA. In that case,
Massachusetts sued EPA to compel EPA to regulate greenhouse gas
emissions from new motor vehicles. It argued that EPAs failure to regulate
contributed to climate change, resulting in rising sea levels, which in turn
caused erosion to Massachusettss coastal land. The Court held that the
causation requirement for standing was satisfied, even though numerous
additional causes contributed to climate change.
Here, at first blush, the plaintiffs causation argument appears even
stronger than in the Massachusetts case. In this matter, there are only two
possible contributors to the plaintiffs injury, as opposed to the multiple
causes in Massachusetts. Accordingly, the plaintiffs injury, at least to some
extent, can be traced to Company As allegedly excessive dumping of
pollutants into the creek.

Although Massachusetts appears to support the plaintiffs causation


argument here, Massachusetts is distinguishable from this case in one
important respect. The Court in Massachusetts noted that it would relax
the stringent Article III requirements for standing because the plaintiff was
a state, not a private party. The state would therefore enjoy special
solicitude in the Courts standing analysis. Here, the plaintiff is a private
party, so the district court will likely not afford her the same deferential
treatment that the Supreme Court showed Massachusetts. As a result, the
plaintiffs reliance on Massachusetts is misplaced.
The upshot: although this is a close question, the causation element is likely not
satisfied. There were two contributors to the plaintiffs injury. Because the
plaintiffs complaint fails to adequately connect her injury to the pollutants
discharged by Company A, which is the only defendant before the Court, the
plaintiff cannot carry her burden on the causation element.

Note: Its equally plausible for you to reach the opposite conclusion on causation.
Because the question is close, your law professor will pay more attention to how
you reached your conclusion, as opposed to the conclusion itself. In short, you
can score just as many points by addressing the relevant arguments, even if you
arrive at the opposite result.

III. Redressability
The third element of standing is redressability. For the plaintiff to carry her
burden on this element, she must establish that the relief she requests from the
court will likely redress (that is, prevent or make her whole from) her injury.
Although this is a close question, the plaintiff likely cannot establish
redressability. The plaintiffs alleged injuries stem from her belief that the
presence of pollutants in the creek renders the water undrinkable. Accordingly,
she requests an injunction prohibiting Company A from discharging more
pollutants into the creek than the EPA permit allows. However, this relief, even if

granted, would not eliminate the discharge of pollutants into the creek, because
Company A will be permitted to continue discharging pollutants up to the level
allowed by the EPA permit. Likewise, the pollutants discharged by Company B,
which is not a defendant in this case, will remain unaffected by a court decision
favorable to the plaintiff. As a result, the plaintiffs injury will not be redressed by
the relief she seeks, since pollutants will remain in the water even if she prevails.

Massachusetts v. EPA provides the strongest support for the plaintiffs


redressability

argument.

There,

the

Supreme

Court

held

that

Massachusetts had established redressability, even though the requested


reliefrequiring the EPA to regulate emissions from new motor vehicles
would not completely stop the erosion of Massachusettss coastland. As
in Massachusetts, the requested relief here would at least partially address
the plaintiffs injury in fact, because it would reduce the discharge of
pollutants into the creek. Nevertheless, because the plaintiff here is a
private partynot a statethe deferential standing analysis employed by
the MassachusettsCourt will be inapplicable, for the reasons stated in the
previous section.
In conclusion, the district court should grant Company As motion to dismiss,
because the plaintiff fails to satisfy all three elements required to establish Article
III standing.

Note: As with causation, its equally plausible for you to reach the opposite
conclusion on redressability. Because the question is close, your law professor
will pay more attention to how you reached your conclusion, as opposed to the
conclusion itself. In short, you can score just as many points by addressing the
relevant arguments, even if you arrive at the opposite result.
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Fact Pattern
The mad cow disease has made a sudden outbreak in the United States. The
disease affects adult cattle, and it can be transmitted to humans who eat beef
made from infected cattle. Humans who consume infected beef can develop a
human form of mad cow disease, called Creutzfeldt-Jakob disease, which is a
fatal condition.
State A is bordered by two other states that are major cattle producers. These are
also the only two states with confirmed cases of mad cow disease. In response to
the federal governments inaction to address mad cow disease, State A passes
legislation to implement a local response to the crisis. The law, called the Protect
Our State from Mad Cow Disease Act (the Act), contains the following two
provisions:

Provision 1. It is unlawful to sell cattle products in State A unless the products


have been inspected at an approved privately-owned inspection plant located in
State A. This inspection facility employs state-of-the-art microbiological
equipment, unavailable at most other facilities, to test products for mad cow
disease. Recent studies have shown that facilities with inferior microbiological
equipment have produced false negatives by failing to detect mad-cow disease in
infected cattle.

Provision 2. A mad cow tax is imposed on all sales of cattle products in State A.
Fifty percent of all revenues derived from this tax will be distributed as a subsidy
to cattle producers in State A, to promote the production of cattle products
uncontaminated by mad cow disease.
A cattle producer, located outside of State A, has sued State A in federal district
court to enjoin the enforcement of the Act. The cattle producer argues that the
Act is unconstitutional under the Dormant Commerce Clause. More specifically,
the producer argues that Provision 1 violates the Dormant Commerce Clause by
preventing out-of-state cattle producers from relying on their own inspection

facilities, thereby raising the costs of producing and selling cattle. It further
argues that Provision 2 violates the Dormant Commerce Clause because the
provision benefits in-state cattle producers at the expense of out-of-state cattle
producers.

Questions
1. Is Provision 1 constitutional under the Dormant Commerce
Clause? Explain.
2. Is Provision 2 constitutional under the Dormant Commerce
Clause? Explain.

Question 1
Is Provision 1 constitutional under the Dormant Commerce Clause?
Explain.
The answer is yes. Even though Provision 1 discriminates against interstate
commerce, it serves a legitimate local purpose that available nondiscriminatory
means cannot serve as well.
The Dormant Commerce Clause generally prohibits states from discriminating
against interstate commerce, or imposing undue burdens on it. Where a state
statute

discriminates

against

interstate

commerce,

that

statute

is

unconstitutional, unless the state demonstrates that the statute serves a


legitimate local purpose that cannot be served as well by available
nondiscriminatory means. Laws that facially distinguish between in-state and
out-of-state citizens, goods, or services are considered discriminatory. A law that

is facially neutral, but has a discriminatory purpose or effect, is also considered


discriminatory.
Provision 1 is facially neutral. It applies to all cattle producers, whether located
in-state or out-of-state, and it requires all incoming cattle products to be
inspected at a particular facility in State A. It does not differentiate between cattle
products based on their geographic origin, nor does it prohibit the sale of out-ofstate cattle products.

Although Provision 1 is facially neutral, it is discriminatory in effect,


because it allows only a favored inspection plant within State A to inspect
cattle products for mad cow disease. This case is analogous to the Supreme
Courts decision in Carbone v. Clarkstown. There, a local ordinance
required all solid waste to be processed at a designated transfer station
before leaving the county. The Supreme Court held that the law violated
the Dormant Commerce Clause, because it prevented out-of-state waste
processors from processing the waste generated in the county. Similarly,
Provision 1 here is discriminatory, because it prevents out-of-state facilities
from inspecting incoming cattle products for mad cow disease.
Even though Provision 1 is discriminatory in effect, it may be upheld if State A
can demonstrate that it serves a legitimate local purpose that cannot be served as
well by available nondiscriminatory means. Provision 1 serves the legitimate local
purpose of protecting State As citizens from mad cow disease. In addition, this
purpose cannot be served as well by other means, because the inspection facility
in State A has state-of-the-art equipment that most other inspection facilities
lack. Moreover, other facilities with inferior equipment have failed to identify the
disease in infected cattle. As a result, State A has not engaged in arbitrary
discrimination. Without inspection at these high standards, the health and safety
of State As citizens may be compromised.

Maine v. Taylor is analogous to this case. There, the Supreme Court held
that Maines law prohibiting the importation of out-of-state bait fish was

constitutional, because the law was necessary to protect Maines fisheries


from both parasites and predatory non-native species of fish. The Acts
purpose here is similar: to prevent the serious health consequences of mad
cow disease, by subjecting all cattle products entering State A to inspection
at high standards. What is more, Provision 1 is less discriminatory than the
law upheld in Maine v. Taylor. Provision 1 does allow the sale of out-ofstate cattle products, provided they pass inspection, whereas the law
in Maine v. Taylor completely prohibited the importation of out-of-state
bait fish.
In sum, although Provision 1 discriminates against interstate commerce, it is
constitutional because the state has carried its burden of showing that the
provision serves the legitimate local purpose of protecting and promoting the
health of its citizens, and that this purpose cannot be served as well by available
nondiscriminatory means.
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Question 2
Is Provision 2 constitutional under the Dormant Commerce Clause?
Explain.
Provision 2 has two components: (1) the provision charges an assessment on all
sales of cattle products within State A, but (2) the provision distributes half of the
resulting assessments to in-state cattle producers.
The first component of Provision 2 is constitutional. The assessment is a nondiscriminatory tax that applies equally to all cattle products sold within State A,
whether the products originate from out-of-state or in-state.
But the second component of Provision 2 renders that provision unconstitutional.
By taxing all sales of cattle products, but returning half of that tax as a subsidy to

local cattle producers, the law has the effect of benefiting the local producers at
the expense of out-of-state ones.

Provision 2 is analogous to the statute struck down as unconstitutional in


the Supreme Courts decision in West Lynn Creamery v. Healy. In that
case, the Court invalidated a Massachusetts statute that charged an
assessment on all milk sold by dealers to Massachusetts retailers, and then
distributed that assessment as a subsidy to local dairy farmers. As in West
Lynn Creamery, State A has funded its subsidy in part with sales of cattle
products imported from out-of-state, which has the effect of burdening and
discriminating against interstate commerce.
If State As goal is to promote in-state production of safe cattle, that goal can be
achieved through nondiscriminatory means, in contrast to Provision 1. For
example, State A can constitutionally provide a subsidy to in-state producers, as
long as the subsidy is funded from a general state account, as opposed to
assessments targeted in part to benefit in-state cattle producers at the expense of
out-of-state producers. Accordingly, Provision 2 is unconstitutional under the
Dormant Commerce Clause.
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Fact Pattern
In response to an increasing number of motor-vehicle accidents across the
nation, the U.S. Congress enacts a federal statute, titled the Dont Text and
Drive Act (the Act). The senate report for the Act attributes the increase in
motor-vehicle accidents to a rise in the number of drivers, particularly
teenagers, who send and receive text messages while driving. The senate
report finds that these accidents cost billions of dollars annually in
economic losses, personal injury, and overall societal harm, and that they
interfere with the well-being and educational prospects of their teenager

victims. The senate report further asserts that this problem requires a
national solution, because states have failed to uniformly prohibit texting
while driving.
The Act, as explained below, conditions certain federal funding on the states
prohibiting texting while driving, an offense defined in the Act as operating a
motor vehicle while manually typing or entering multiple letters, numbers,
symbols, or other characters into a wireless communications device. Under the
Act, states have the discretion to impose civil or criminal penalties on violators.
Any state that does not prohibit texting while driving will lose 15 percent of the
federal funds it receives to improve the quality of its public K-12 education. The
total amount that each state would lose constitutes approximately 2 percent of an
average states overall budget.

Questions
1. Is the Act constitutional? Explain.

Question 1
Is the Act constitutional? Explain.
The answer is no. Of the five required elements, the Act satisfies four, but fails the
requirement that the conditions attached to the federal funding be relevant to
Congresss purpose in granting the funding.
The statute is an attempted exercise of Congresss power under the Spending
Clause, which allows Congress to offer federal funds to the States, subject to the
states compliance with specified conditions. These kinds of arrangements are
constitutional under the Spending Clause if the following five requirements are

met: (1) the exercise of the spending power must further the general welfare of
the United States, (2) the conditions that states must meet to receive federal
funding must be stated unambiguously, (3) the conditions must be related to
Congresss purpose in granting the federal funding, (4) the conditions must not
be used to induce states to commit unconstitutional acts, and (5) the financial
inducement offered to the states by Congress cannot be so coercive as to pass the
point at which pressure turns into compulsion.

Requirement 1
The first issue is whether the exercise of the spending power furthers the general
welfare of the United States. In determining whether spending furthers the
general welfare, courts largely defer to Congresss determination. Here, Congress
has found that texting while driving has hampered roadway safety and caused an
increase in motor-vehicle accidents. Applying a deferential standard, the Act
serves the general welfare of the United States because it seeks to promote
roadway safety, decrease accidents, and save lives and taxpayer money.

Requirement 2
The second issue is whether the conditions that states must meet, to receive the
federal funds, are stated unambiguously. Here, the conditions in the Act are clear.
The Act specifically defines the offense that Congress wants the states to prohibit,
and it affords the states discretion to impose civil or criminal penalties on the
violators.

Requirement 3
The third issue is whether the conditions that states must meet, to receive the
federal funding, are related to Congresss purpose in granting the funding.
Specifically, in this case, the question is whether the condition of prohibiting
texting while driving relates to Congresss purpose in providing the states with
federal funds for public K-12 education. Although this is a close question, the
answer is probably no.

In South Dakota v. Dole, the U.S. Supreme Court held that this
requirement was satisfied where the federal government conditioned the
receipt of 5 percent of federal highway funding on the requirement that
states raise their minimum drinking age to 21. The Court held that the
condition was directly related to highway safety, which was a primary
purpose for providing federal highway funds, because teenagers were
particularly prone to cause accidents after drinking and driving.
Here, the relationship between the spending and the condition in the Act is
less direct than the relationship in Dole. At first blush, there is no apparent
relationship between funds for education and texting while driving.
Educational funds are provided to bolster the quality of public education in
the states, and do not bear a direct relationship to highway accidents.
Nevertheless, according to the senate report, teenagers are the primary
victims in texting-while-driving accidents, which can interfere with the
well-being and educational prospects of their teenager victims. This, in
turn, relates (albeit indirectly) to the purpose of federal funding for K-12
education, but this relationship is probably too attenuated to satisfy the
third requirement. To make the relationship between condition and
purpose stronger, Congress should amend the statute to condition the
receipt of highway funds, rather than education funds, on prohibiting
texting while driving.
Requirement 4
Note: Requirement 4 addresses a First Amendment question, freedom of speech,
but the First Amendment is often taught in Constitutional Law II, or perhaps a
separate course on the First Amendment. Either of these would probably be an
upper-level course. Thus, if your law school separates Constitutional Law into
two classes (or teaches First Amendment as a separate class), and you have taken
only Constitutional Law I, your answer will understandably not discuss this issue.

The fourth issue is whether the conditions seek to induce the states to do
anything unconstitutional. The answer is no, because the states would not forbid
a constitutionally protected activity simply by prohibiting texting while driving.
More specifically, the prohibition on texting while driving is a constitutional time,
place, and manner restriction on certain communication activities, so it does not
run afoul of the First Amendment. For a time, place, and manner restriction to be
constitutional, the following requirements must be met: the regulation must
serve an important governmental interest, that government interest must be
unrelated to the suppression of a particular message, the regulation must be
narrowly tailored to serve the government's interest, and the regulation must
leave open ample alternative means for communicating messages.
All of these requirements are satisfied here. The regulation furthers the
important government interest of promoting roadway safety. The government
interest is unrelated to the suppression of a particular message, since the statute
is concerned with the meanstexting while drivingthrough which the
communication occurs, rather than the content of the communication itself. The
statute is narrowly tailored because it prohibits texting while driving, which is the
very activity that has led to an increase in motor-vehicle accidents. The statute
also leaves open ample alternative means for communicating messages, since
citizens are free to send text messages, and communicate via other means, as long
as they are not driving. Accordingly, the Act does not require the states to engage
in any unconstitutional activity in order to receive funding.

Requirement 5
The fifth issue is whether the financial inducement offered to the states by
Congress is so coercive as to pass the point at which pressure turns into
compulsion. For the Act to pass this test, the states must have a genuine
choice whether to accept Congresss condition. In South Dakota v. Dole,
the Supreme Court held that the condition at issue was not coercive,
because the states would lose only 5 percent of their federal highway funds

if they refused to raise their minimum drinking age to 21. The federal funds
at stake constituted less than 0.5 percent of South Dakotas budget, which
the Court found to be only relatively minor encouragement. In contrast,
in NFIB v. Sebelius, the Supreme Court held that Congresss threat to
withhold 100 percent of Medicaid funds from states who refused to accept
Congresss new Medicaid program was unconstitutionally coercive. The
funds at stake in Sebelius amounted to over 10 percent of a states overall
budget.
The amount at stake here lies somewhere between the funds at stake
in Doleand Sebelius. Particularly, 15 percent of all education fundswhich
amounts to 2 percent of an average states overall budgetis more than the
amount in Dole, but less than the amount in Sebelius. Nevertheless,
because the amount involved here (2 percent of the overall budget) is
closer to the 0.5 percent of the budget at stake in Dole than it is to the 10
percent of the budget at stake in Sebelius, Congresss financial inducement
is probably not coercive.
In conclusion, although the Act satisfies four of the five requirements
under the Spending Clause, because the purpose of the federal funding
(education) doesnt bear a sufficiently close relationship to the condition
(prohibiting texting while driving), the Act is unconstitutional.
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Fact Pattern
Six months ago, the U.S. Congress declared war on Country A, in response to
Country As state sponsorship of terrorist activities. U.S. military operations in
Country A since the declaration of war yielded no progress but cost thousands of
lives.

As a result, Congress passes the following resolution: All armed forces of the
United States are hereby directed to be removed from Country A no later than
two months from the date of this resolution. The president vetoes the resolution,
but Congress overrides the veto by re-enacting the resolution with the required
two-thirds majority in both houses. The president then declares that he will
ignore the resolution, because he believes the resolution unconstitutionally
infringes on his powers as commander-in-chief.
In response to the presidents announcement, the plaintiff, an American military
officer, files a lawsuit against the U.S. Secretary of Defense in federal district
court. (Assume that the Secretary of Defense is the proper official for the plaintiff
to sue in this case.) The complaint alleges that the plaintiff has received orders to
deploy to Country A three months from now for a twelve-month tour of duty. The
plaintiff seeks an injunction prohibiting his deployment, in light of the
congressional resolution directing all American forces to be removed from
Country A. The plaintiff further alleges that his deployment would be unlawful,
because Congress, not the president, has the constitutional power to declare both
the beginning and the end of a war.
The Secretary of Defense files a motion to dismiss, on the basis that the plaintiffs
case presents a non-justiciable political question.

Questions
1. Should the court grant the motion to dismiss? Explain,

focusing only on whether the case presents a non-justiciable


political question, but do notconsider any other justiciability
issue (including standing) and do notconsider the merits of the
case.

Question 1
Should the court grant the motion to dismiss? Explain, focusing only on
whether the case presents a non-justiciable political question, but
do notconsider any other justiciability issue (including standing) and
do notconsider the merits of the case.
The case likely does present a political question and, for that reason, should be
dismissed.
Political questions are legal questions that the judiciary cannot decide, because
the Constitution vests another branch of the federal government with final
authority to make the relevant decision. In determining whether a case presents a
political question, courts balance the following six factors: (1) textually
demonstrable constitutional commitment of the issue to a coordinate political
department (that is, a coequal federal branch of government other than the
judiciary); (2) lack of judicially discoverable and manageable standards for
resolving the issue; (3) the impossibility of deciding the issue without an initial
policy determination of a kind clearly for non-judicial discretion; (4) the
impossibility for a court to resolve the issue independently, without expressing
lack of respect due to coordinate branches of government; (5) unusual need for
unquestioning adherence to a political decision already made; and (6)
potentiality of embarrassment from multifarious pronouncements by various
departments on one question. Most courts consider the first two factors to be the
most important.
It should be noted from the outset that this case presents a question concerning
foreign affairs. The U.S. Supreme Court, in Baker v. Carr, noted that foreignaffairs cases frequently present political questions, because they tend to: turn on
standards that defy judicial application, involve the exercise of a discretion
demonstrably committed to the executive or the legislature, and demand singlevoiced statements of the governments views. But the Baker Court also noted that

not every case touching on foreign relations is beyond judicial cognizance, and
that determination should be made on a case-by-case basis.

Factor 1
The first issue is whether the Constitution textually commits the question to a
coordinate branch of the federal government. This factor probably favors the
plaintiff, because the questions raised by the lawsuit fall within the domain of the
judicial branch.
Under the Constitution, Congress has the power to declare war, and the
president, as the Commander-in-Chief, has the authority to execute the war. But
the Constitution is silent on which branch has the authority to end a war, which is
the precise issue in this case.
The secretary will likely argue that because the Constitution apportions the warmaking power between the executive and the legislature, the issue is left for
debate between the president and Congress, and is not for a court to decide. In
support, the defendant would probably cite Nixon v. United States, where the
U.S. Supreme Court dismissed as non-justiciable the question whether the Senate
had properly tried an impeachment, because that question was textually
committed by the Constitution to the Senate.
This is a close call, but this argument fails. Although the war-making power is
allocated between the political branches of government, the judicial branch has
the authority to review the use of war-making power to ensure that it is
constitutional. Nixon is distinguishable from this case, because the constitutional
provision at issue there gave the Senate the sole power to try impeachments,
but no terms such as sole or only appear in the constitutional provisions
concerning war powers. The Constitution delegates power to other branches in
numerous instances (for example, Congress has the authority to regulate
commerce), but the courts still have the authority to review the actions of the

other branches to ensure that they have not exceeded their constitutional
boundaries. As a result, factor 1 favors the plaintiff.

Factor 2
The issue is whether there is a lack of judicially discoverable and manageable
standards for resolving the case. This factor favors the secretary.
The plaintiff will argue that the questions presented by this case are all legal
questions about the allocation of constitutional authority on war powers, which
the judicial branch is well qualified to resolve by interpreting the text of the
Constitution.
This argument fails. This case requires the court to decide whether the Congresss
power to declare war also implies the power to end war. Neither the Constitution,
nor existing case law, provides a clear answer to this question. This case is
analogous to Goldwater v. Carter, where a plurality of the Supreme Court
concluded that a lawsuit against President Carters cancellation of a treaty
presented a political question. The Court reasoned that, although the
Constitution authorized the Senate to ratify treaties, the Constitution was silent
on how a treaty could be abrogated. As a result, the judiciary lacked the required
standards for resolving the case. Similarly, here, although the Constitution
authorizes Congress to declare war, it is silent on whether Congress may end the
war. Therefore, factor 2 favors the defendant.

Note: In a real constitutional law exam, most available points would probably be
allocated to factors 1 and 2. As for the remaining factors, the Court has
articulated them only vaguely in the relevant case law, so you may notice how our
analysis of those factors blends together somewhat.

Factor 3
The issue is whether it is possible to decide the merits of the case without an
initial policy determination of a kind clearly for non-judicial discretion. This

factor also favors the defendant. The question whether to end a war, just as much
as whether to begin a war, is a policy question that the political branches are
better situated to resolve. The judicial branchs supervising whether the president
should be required to end the war in Country A, simply because Congress has
passed a resolution to that effect, would intrude into critical areas of
responsibility that the Constitution vests in the political branches. Accordingly,
this factor favors dismissing this case on political-question grounds.

Factor 4
The issue is whether the court can resolve the case, but without expressing a lack
of the respect due to the coordinate branches of government. This factor favors
the defendant.
The plaintiff would probably argue that a court decision resolving the case would
not imply such a lack of respect, because the coordinate branches are at an
impasse on whether to continue the war in Country A, and a neutral arbiter is
thus required to resolve their dispute.
This argument fails. A court ruling here would only complicate the conflicting
pronouncements already made by the political branches. The dispute can be
resolved through the appropriate political channels, without involving the
judiciary, as Congress has numerous tools at its disposal to counter what it
considers to be the presidents illegal or unconstitutional actions, including the
power of impeachment and the power to defund the war effort. In addition, as the
U.S. Supreme Court held in United States v. Curtiss-Wright Export Corp., the
president is the principal architect of U.S. foreign policy. As a result, the judicial
resolution of this case, and a potential court order to withdraw all troops from an
active combat operation, presents a great risk of international embarrassment to
the president in his dealings with the remainder of the world. Therefore, factor 4
favors the defendant.

Factor 5

The issue is whether there is an unusual need for unquestioning adherence to a


political decision already made. This factor favors the defendant.
The plaintiff will probably argue that there is no unusual need for unquestioning
adherence to a political decision already made here, because the policy views of
the political branches are in direct conflict. Congress desires to end the war in
Country A, and the president wishes to continue it.
Although this is a close call, the plaintiffs argument is not persuasive. A judicial
ruling would inject more uncertainty into current as well as future armed
conflicts, by establishing the courts as the ultimate overseers of the direction and
duration of American armed conflicts. The U.S. Constitution commits these
policy questions concerning war powers to the discretion of the political
branches. In addition, a court order to withdraw troops could also jeopardize
ongoing combat operations in Country A and potentially threaten national
security. As a result, there is a need for adherence to a political decision already
made.

Factor 6
The final issue is whether judicial review would create potential embarrassment
from multifarious pronouncements by various departments on one question. This
factor also favors the defendant.
The plaintiff will argue that there are already two conflicting positions on this
issue by the political branches of government. Regardless whether the court
decides the issue, so the argument will go, there will be multifarious
pronouncements by the United States on whether combat operations in Country
A should continue.
The plaintiffs argument fails. As the Baker Court noted, there is a special need
for the nation to speak with one voice in the foreign affairs area. There are now
two voices, and with a judicial ruling, there would be three pronouncements by

three different branches on the same question. As a result, judicial review creates
the potential for further embarrassment to the United States.
In conclusion, because five out of the six factors favor the defendant, this case
presents a non-justiciable political question. As a result, the defendants motion
to dismiss should be granted.
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Fact Pattern
Responding to increasing gun violence, the U.S. Congress enacts a statute,
the Firearms Purchase Control Act (the Act) mandating a background
check for each prospective firearm purchaser. The legislative record for the
Act states, among other things, the following: Background checks for
firearm purchasers are necessary to ensure that guns do not fall into the
wrong hands. Recent incidents of gun violence have been primarily
attributable to the purchase of firearms without thorough background
checks. The legislative record further finds that gun violence, resulting
from the omission of background checks, costs hundreds of millions of
dollars each year in social and economic harm. These costs, the findings
conclude, ripple through the national economy and substantially affect
interstate commerce. According to the legislative record, federal action is
required because states have failed to impose uniform requirements for
background checks. As a result, some prospective gun purchasers use the
interstate highways or airports to travel to states with comparatively lax
requirements for firearm purchases.
The Act states the following: All prospective firearm purchasers must undergo a
background check by the Federal Bureau of Investigation. The term firearm,

for purposes of the Act, is defined as any weapon located anywhere within the
United States that is capable of expelling a projectile by explosive force.

Questions
1. Is the Act constitutional? Explain, without discussing the Second
Amendment.

Question 1
Is the Act constitutional? Explain, without discussing the Second Amendment.
The answer is yes, because the Act is a valid exercise of Congresss powers under
the Commerce Clause.
The Commerce Clause authorizes Congress to regulate interstate and foreign
commerce. More specifically, Congress can regulate three categories of activity
under the Commerce Clause: (1) channels of interstate commerce; (2)
instrumentalities of interstate commerce, as well as people and objects in
interstate commerce; and (3) intrastate activities that substantially affect
interstate commerce.

Category # 1
The first category does not apply here. This category permits Congress to regulate
the channels of interstate commerce, such as interstate highways and airports. In
this case, the Act regulates firearms, which are inherently different from the
highways, airports, and other channels through which interstate commerce
moves.

Category # 2

The second category also does not apply. This category permits Congress to
regulate the instrumentalities of interstate commerce, such as airplanes and
trucks, as well as people and objects in interstate commerce. A firearm is not an
instrumentality of interstate commerce, as it does not carry persons or things that
move in interstate commerce.
In addition, though one may argue that firearms can be objects in interstate
commerce, the scope of the Act is not confined to firearms moving in interstate
commerce: the Act requires backgrounds checks for all firearms located
anywhere in the United States, regardless whether the firearms have traveled
from one state to another. Although the legislative record for the Act states that
some firearm purchasers use interstate travel to conduct their purchases, the Act
reaches all prospective firearm purchasers, regardless whether they engage in
interstate travel. As a result, the Acts breadth brings it outside the permissible
grounds for regulation under the second Commerce Clause category.

Category # 3
The Act complies with the requirements for the third Commerce Clause category.
This category allows Congress to regulate intrastate activities that substantially
affect interstate commerce. To fit within the third category, the Act must fulfill
the following requirements: (1) the Act must regulate economic activity; (2) the
regulated activity, considered in the aggregate, must substantially affect
interstate commerce; and (3) the Act must regulate activity, not inactivity.
The first issue is whether the Act regulates economic activity. The answer is yes.
The Supreme Court has defined economic activity to include activities that arise
out of, or are connected with, a commercial transaction. Here, the background
checks required under the Act fulfill this requirement, because they take place in
connection with a commercial transactionthe purchase of firearms.

This case is distinguishable from United States v. Lopez. In Lopez, the


Supreme Court invalidated the Gun Free School Zones Act of 1990, which

prohibited the possession of a firearm within a school zone. The Court


reasoned that Congress could not regulate simple possession of a firearm
under the Commerce Clause, because simple possession, unconnected with
the purchase of a firearm, was not an economic activity. In contrast to the
statute in Lopez, the Act here regulates the purchase of a firearm, which is
a quintessentially commercial activity that is different in kind from the
non-commercial activity that is mere possession.
The second issue is whether the regulated activity, considered in the
aggregate, substantially affects interstate commerce. Courts are more likely
to find that this requirement has been satisfied if there are legislative
findings establishing the required link between the activity and interstate
commerce. Here, Congress has found that gun violence, resulting from the
omission of background checks, costs hundreds of millions of dollars each
year by way of social and economic harm. These costs, the findings
conclude, substantially affect interstate commerce. A court is likely to defer
to these findings and hold that the failure to conduct background checks
substantially affects interstate commerce. Although the purchase of a
single firearm without a background check is unlikely to affect interstate
commerce substantially, the substantial-effects test is applied in the
aggregate. In other words, the question is whether the purchase
of all firearms across the country, without adequate background checks,
substantially affects interstate commerce. Because the legislative report so
finds, this requirement is likely satisfied.
The third and final question is whether the statute regulates activity, as
opposed to inactivity. In NFIB v. Sebelius, the Supreme Court held that
Congress lacks the constitutional authority under the Commerce Clause to
regulate inactivity, as opposed to activity, by mandating that individuals
purchase health insurance. At first blush, it may appear that the Act here
regulates inactivity: the failure to perform a background check prior to a
firearm purchase. Nevertheless, the individuals regulated by the Act here
are actively purchasing a firearm, and through the Act, Congress is merely

regulating the process by which that purchase is conducted. The Act does
not require individuals who are inactive in the market for the sale of
firearms to become active in that market, as in Sebelius. Rather, it merely
regulates those who have actively decided on their own to participate in
that market. As a result, the statute satisfies the third requirement.
In conclusion, the Act is a valid exercise of Congresss powers under the
Commerce Clause because the regulated activity (the purchase of firearms) is
economic in nature; in the aggregate, the purchase of handguns without
background checks substantially affects interstate commerce; and the Act does
not mandate individuals to become active in commerce.
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Fact Pattern
Responding to an increasing number of motorcyclists who operate their
motorcycles without helmets, the U.S. Congress enacts a federal statute,
the Put Your Helmet On! Act (the Act). The legislative record for the Act
states, among other things, the following: A significant portion of
motorcyclists continue to operate their motorcycles without helmets,
rendering them particularly prone to head injuries. These injuries have
grown more frequent in recent years, and they are directly attributable to
the omission of a helmet. Before passing the Act, Congress held hearings
to determine whether the failure to wear motorcycle helmets affects
interstate commerce, but found the effect on interstate commerce to be
minor, not substantial.
The Act defines a motorcyclist as anyone who operates a motorcycle, and it states
the following:

Provision 1. All motorcyclists driving on any road or highway within the United
States are required to wear helmets. Violators will be subject to a fine in the
amount of $500.

Provision 2. The cooperation of the states is necessary to decrease the


number of motorcyclists driving without helmets. To that end, each state
must choose between one of two options: (1) The state must enact
legislation, under state law, requiring all motorcyclists to wear helmets
within the boundaries of that state, or (2) if any state chooses not to enact
legislation, that state must direct its own law-enforcement personnel to
enforce Provision 1 of this federal Act and report any violations to federal
authorities for investigation and prosecution.

Questions
1. Is Provision 1 constitutional? Explain, applying only the Commerce
Clause and noting any amendments that can be made to the Act to
rectify any constitutional deficiencies.
2. Is Provision 2 constitutional? Explain.

Question 1
Is Provision 1 constitutional? Explain, applying only the Commerce Clause and
noting any amendments that can be made to the Act to rectify any constitutional
deficiencies.
Provision 1, as currently drafted, is unconstitutional under the Commerce Clause.
The Commerce Clause authorizes Congress to regulate interstate and foreign
commerce. Congress can regulate three categories of activity under the

Commerce Clause: (1) channels of interstate commerce; (2) instrumentalities of


interstate commerce, as well as people and objects in interstate commerce; and
(3) intrastate activities that substantially affect interstate commerce.
The first category does not apply here. This category permits Congress to regulate
the channels of interstate commerce, such as interstate highways and airports. In
this case, Provision 1 regulates the drivers of motorcycles, who are not channels
through which interstate commerce moves.
The second category also does not apply. This category permits Congress to
regulate the instrumentalities of interstate commerce, such as airplanes and
trucks, as well as people and objects in interstate commerce. A motorcycle is
unlike aircraft and commercial trucks that are regularly used in interstate
commerce. Also, the legislative record does not establish that motorcycles are
used to transport commercial goods from one state to the other.

In addition, Provision 1 doesnt regulate only people and objects moving in


interstate commerce. Provision 1 reaches beyond motorcycles that are
crossing state lines, because the provision affects all motorcyclists
operating on any road or highway within the United States. Although
some motorcyclists use their motorcycles to cross state lines, the reach of
the Act is not limited to them. As a result, Provision 1 falls outside the
permissible grounds for regulation under the second Commerce Clause
category.
The third Commerce Clause category also does not apply. This category allows
Congress to regulate intrastate activities that substantially affect interstate
commerce. Although Congress held legislative hearings to establish the required
link between (1) motorcyclists failure to wear helmets and (2) interstate
commerce, Congress found the effect to be minor, not substantial. As a result,
Provision 1 is not authorized by the third category.

Because none of the three Commerce Clause categories authorize Provision 1, the
provision, as currently drafted, is unconstitutional.
To rectify this constitutional deficiency, Congress can amend the Act to state the
following: All motorcyclists driving on interstate highways are required to wear
helmets. Violators will be subject to a fine in the amount of $500. With this
amendment, the reach of the Act would be narrowly confined to encompass only
those motorcyclists operating on interstate highways. In that case, the second
Commerce Clause category, which permits Congress to regulate people or objects
moving in interstate commerce, would authorize Provision 1.
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Question 2
Is Provision 2 constitutional? Explain.
Provision 2 is unconstitutional because it violates the anti-commandeering
doctrine. Under the anti-commandeering doctrine, Congress cannot requisition
the states legislative processes by directly compelling the states to enact a federal
regulatory program. The doctrine also prohibits Congress from requiring state
officers to enforce federal law.
At first blush, Provision 2 may appear to offer the states a voluntary choice
between two options: (1) requiring helmets under state law or (2) directing state
law-enforcement personnel to enforce Provision 1 of the Act and refer any
violators to federal authorities for investigation and prosecution. Nevertheless,
Provision 2 violates the anti-commandeering doctrine, because each of these
choices, standing alone, would be beyond Congresss constitutional authority.
The first option is an unconstitutional commandeering of state legislatures. It
requires states to pass a state law according to federal instructions, by prohibiting

the operation of a motorcycle without a helmeteven where the state does not
wish to do so. Although Congress has the constitutional authority to encourage
states to pass laws and regulations, it lacks the authority to compel them to do so.

The second option is an unconstitutional commandeering of state executive


officers, because it requires state law-enforcement officers to enforce
federal law. The U.S. Supreme Courts decision in Printz v. United States is
on point. There, the U.S. Supreme Court invalidated certain interim
provisions of the Brady Handgun Violence Prevention Act; these provisions
required state law enforcement officers to conduct background checks on
prospective handgun purchasers. The Court held that these interim
provisions violated the anti-commandeering doctrine because they
required state law enforcement officers to enforce federal law. Similar to
the provision invalidated in Printz, Provision 2 here requires state law
enforcement officers to enforce Provision 1 of the Act, which violates the
anti-commandeering doctrine.
Provision 2s choice between these two unconstitutional options is itself
unconstitutional. The U.S. Supreme Courts decision in New York v.
United States is on point. In that case, the Court invalidated a provision in
the Low-Level Radioactive Waste Policy Amendments Act of 1995 that
presented states with two options: the states could regulate the disposal of
radioactive waste under state law, or they could take title to all radioactive
waste generated within their borders. The Court reasoned that each option,
standing alone, would be unconstitutional under the anti-commandeering
doctrine, so forcing the states to choose between these options was equally
unconstitutional. Here, as in New York, each option that Provision 2
affords the states violates the anti-commandeering doctrine. As a result,
Provision 2 is unconstitutional.
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