Fed Courts Exam 2016: Unexpected Consequences for President Sanders

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by Michael Dorf

As per my custom, I am posting the Federal Courts exam I administered this past semester. It features President Bernie Sanders. This is not an endorsement. In order to make the scenario realistic, I needed an anti-NAFTA president (for which Donald Trump would also have worked) but also one who is otherwise internationalist (for which Trump would not have worked). The instructions told students they had eight hours to complete the exam, and it was take-home, open-book, with a 2500-word limit. I also asked students to assume that Hughes is a state of the U.S. The three questions are of equal weight. Submit answers in comments, but I'm done grading, so I won't comment further myself.

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The following facts should be assumed for questions 1 and 2.

In November 2016, Bernie Sanders is elected president, and Democrats win very narrow majorities in the House and Senate (50 Democrats plus Vice President Elizabeth Warren). During the lame-duck session between the election and the new Congress taking their seats, the Senate confirms Merrick Garland to the Supreme Court. On the first day of its session in January 2017, the Senate changes the cloture rule. Now a simple majority is all that is required to end debate on ordinary legislation and on all appointments.

The following additional facts should be assumed for question 1 only.

On his first day in office, President Sanders issues an executive order nullifying the North American Free Trade Agreement (NAFTA). In a signing statement accompanying the order, President Sanders announces “this Administration believes in international law, but international law for the People, not the billionaire class. Although I am withdrawing from NAFTA because it favors multi-national corporations, I am also strengthening U.S. support for international cooperation.” True to his word, in February 2017, President Sanders reaches a multilateral agreement with the heads of state of 34 countries, including Mexico and Canada. The agreement, which is titled “International Law Uniformity Mechanism Agreement” (ILUMA), provides that it “shall become effective when confirmed as effective among the parties so confirming the agreement by their respective national mechanisms.”

ILUMA further provides that “any member country, and any person who is a citizen or subject of a member country, may appeal any adverse ruling by the highest judicial authority of a member country with regard to the validity or application of any international agreement to the ILUMA Court, which shall issue rulings that are fully binding on the courts of the member countries.” ILUMA specifies that the ILUMA Court is a 7-member court, with members each serving for 12-year terms, and chosen by lot from a list composed of one nominee per member country (except that no country may have more than one member at any time).

President Sanders submits ILUMA to the Senate for its advice and consent. On a party-line vote, ILUMA receives support from a majority but fails to garner the 2/3 vote needed to approve a treaty. President Sanders then changes course and re-submits ILUMA to the House and Senate as ordinary legislation. It passes under the title “ILUMA Implementation Act,” and President Sanders signs it. The other signatory countries also approve ILUMA. The first ILUMA Court is chosen. It includes no U.S. members.

Meanwhile, in April 2017, President Sanders imposes a 30% tariff on all automobiles assembled outside of the United States. General Motors (GM), a U.S. corporation headquartered in Michigan and incorporated in Delaware, assembles thousands of its vehicles in Mexico and Canada for sale in the United States. GM sues the Secretary of Commerce in the Court of International Trade (CIT), an Article III court. GM argues that as applied to its Canadian and Mexican-made cars, the tariff violates NAFTA. GM wins, but the ruling is reversed by the Federal Circuit.

The case then reaches the Supreme Court, which holds 5-4 that the tariff is valid because President Sanders had the authority to nullify NAFTA and validly did so. The Supreme Court further holds that once President Sanders invalidated NAFTA, the NAFTA Implementation Act became inoperative because “there was nothing to implement.”

GM appeals to the ILUMA Court. After briefing and oral argument, the ILUMA Court by a 4-3 vote reverses. It first finds that GM can take advantage of ILUMA “because a corporation is a person under U.S. law, see 1 U.S.C. § 1.” The ILUMA Court then finds that “under U.S. constitutional law and federal common law, a president may nullify a treaty but not a congressional-executive agreement such as NAFTA, which is in the nature of an ordinary statute, and thus can only be nullified by repeal.” Accordingly, the ILUMA Court holds that the tariff thus violates NAFTA and the NAFTA Implementation Act. The ILUMA Court remands to the U.S. Supreme Court “for further proceedings consistent with this judgment.”

The case is now back in the U.S. Supreme Court. You are a law clerk for Justice Garland. In the prior proceeding, Justice Garland voted with the majority. He does not know whether he is bound by the ILUMA Court’s ruling.

Question 1. Write a memorandum setting forth the relevant considerations and how you think they should be resolved.


The following facts should be assumed for question 2 only.

In May 2017, Congress passes and President Sanders signs the Corporations Ain’t People Act (CAPA), which contains a variety of provisions governing campaign finance and other subjects. As relevant here, CAPA also contains the following provision.

Sec. 401. Notwithstanding any other provision of law, no court in the United States shall have jurisdiction over any claim by any corporation or an agent acting on behalf of any corporation seeking injunctive or declaratory relief against a state or federal official on the ground that said official is under a duty to comply with federal law. If any portion or application of this provision is found unconstitutional, the remaining portions or applications shall be severed and valid.

Although sparse, the legislative history of Sec. 401 of CAPA indicates that its sponsors sought to “eliminate Lochner-type Ex Parte Young actions and Section 1983 actions by big corporations, thus preserving court access for natural persons.”

In June 2017, under lobbying pressure from the large conventional agricultural sector in the state, the Hughes legislature passes and Hughes Governor Peñalver signs the Protecting Our Consumers From Insects Act (POCFIA). The Act requires that “select produce offered for sale to consumers in Hughes be labeled in bright red letters in at least 20-point type with the words ‘Beware of Bugs and Bug Parts.’ ” It further requires that the packaging on such produce also must prominently display the following image of a locust in an area that is at least four square inches:



The definitional portions of POCFIA make clear that conventionally grown produce—i.e., produce grown using insecticides—is not subject to the Act’s labeling requirements. However, all produce that would qualify as “organic” is subject to the requirements.

The penalties provision of POCFIA states that “any person who sells produce not properly labeled under this Act shall be liable for a fine of up to $10,000 and/or imprisonment for up to five years” for each improperly labeled item sold, with penalties to be assessed per item, fines to be cumulative, and sentences to be consecutive.

Sarah Jane Hawkins and her immediate family members are the only shareholders in Hawk Farm, Inc., a closely held corporation that operates Hawk Farm. Hawk Farm grows organic strawberries on the Hawkins family farm in Hughes. Hawk Farm sells approximately $300,000 worth of strawberries annually through grocery stores and restaurants throughout Hughes. Upon the passage of POCFIA, Hawkins and Hawk Farm, Inc. sue Hughes Attorney General Regina Blume in federal district court in Hughes, invoking 28 U.S.C. § 1331 as the basis for jurisdiction, and bringing causes of action under Ex Parte Young and 42 U.S.C. § 1983.

The complaint alleges that POCFIA is preempted by the federal Organic Foods Production Act, 7 U.S.C. §§ 6501 et seq., both expressly by 7 U.S.C. § 6507 and impliedly. The complaint also alleges that POCFIA compels speech in violation of the First Amendment.

With respect to jurisdiction, the complaint alleges “in the alternative that Sec. 401 of CAPA was never intended to apply to small family farms like Hawk, or it is facially unconstitutional, or it is unconstitutional as applied.”

Blume moves to dismiss the complaint on the ground that there is no jurisdiction in light of Sec. 401 of CAPA, which, her 12(b)(1) motion contends, “applies by its plain language and is valid both on its face and as applied.” You are a lawyer for Organics for Everyone, a non-profit organization that promotes organic produce. You are working pro bono for Hawkins and Hawk Farm, Inc.

Question 2: Write a memorandum candidly assessing the chances that the district court will accept jurisdiction over the lawsuit.


Question 3: Concurring in the judgment in Brown v. Allen, 344 U.S. 443, 537 (1953), Justice Jackson wrote: “It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.” Do you think that the path of the law of habeas corpus as a collateral remedy in the ensuing 63 years vindicates Justice Jackson’s concern? Why or why not?


End of Exam