A Con Law Exam Featuring A Barter Ban, Discrimination Against an AroAce Couple, and Campaign Finance
Per my custom, I am posting the constitutional law exam I administered to my students at the end of last semester. In the past I've given take-home exams, but with the improvement of LLMs like chat-GPT, this one was administered in-person. Students had four hours to complete the exam. Take all the time you need. (Note: Some of what appears below is real; much of it is fiction.)
Question 1 (35%)
After losing over $100,000 on his investment in a Bored Ape Yacht Club NFT, Representative Patrick McHenry, the Chair of the House Financial Services Committee, proposes a bill that he says at a press conference “would crack down on cyrpto scammers.” His committee holds hearings at which people who lost their life savings trading cryptocurrency and NFTs testify. The committee also hears from experts who testify that cryptocurrency enables criminals in Cambodia, Myanmar, and elsewhere to hold people in captivity while forcing them to scam naïve Americans out of their savings. Representative McHenry’s bill—the Maximizing Our National Economic Yield (MONEY) Act—is voted out of committee, then passes the full House and Senate, and is signed by President Biden. The MONEY Act, which will take effect on January 1, 2024, provides:
Findings: Cryptocurrency causes substantial harm due to its facilitation of criminal enterprises and speculative fluctuations that could cause a crisis throughout the global financial system. Congress has the authority to restrict cryptocurrency and other media of exchange as necessary and proper to its powers to: (1) “coin money, regulate the value thereof, and of foreign coin;” (2) “regulate commerce with foreign nations, and among the several states;” and/or (3) “lay and collect taxes.”
Section 1: No individual, partnership, corporation, or other person or entity resident, organized, or doing business in the United States may directly or indirectly convert any cryptocurrency into U.S. currency or vice-versa.
Section 2: Any purchase, sale, or other exchange involving goods or services in the United States must be conducted in U.S. dollars.
Section 3: Each violation of Section 1 of this Act shall be punishable by up to one year in prison and/or a fine or tax of up to $100 for each $10 of value in currency conversions. Each violation of Section 2 of this Act shall be punishable by up to one year in prison and/or a fine or tax of up to $100 for each $10 of value exchanged in violation of Section 2.
Damien Fung is a 63-year-old U.S. citizen who made a fortune running a hedge fund but then read a “freegan” manifesto that inspired him to reject consumerism and capitalism. To transition away from his former life, Fung first purchased a 247-acre plot of wooded land in the remote outer peninsula region of Myrontana. Fung created a trust fund administered by his attorney to pay real estate taxes and any other ongoing costs associated with his property ownership. The money left over in the trust after Fung’s eventual death will be used to preserve his land as a wildlife sanctuary. After buying his land and establishing the trust, Fung donated the balance of his fortune to Greenpeace.
Fung proceeded to build a modest shack from materials he gathered on his own property. Twelve years ago, he moved into the shack, where he currently resides. In accordance with his freegan philosophy, Fung refuses to use money to make any purchases; he subsists on what he gathers, grows, and hunts on his land; he receives no mail or packages, and he is not connected to the electrical grid or the Internet.
Roughly once every two months Fung hikes three miles over hills and fields to the nearby hamlet of Shelbyville. There, he scavenges from dumpsters and visits Bookworms, an independent bookstore owned by Herbert Brown. At Bookworms, Fung barters (that is, trades) his home-made elderberry wine and bear jerky for the latest edition of Recoil Offgrid magazine (which is published bi-monthly and retails for $9.99). Fung possesses no currency and pays no state or federal income tax because the value of the goods he barters is well below the threshold for such tax liability. Brown includes the sales tax that would be due on a money purchase of Recoil Offgrid when he calculates how much elderberry wine or bear jerky to demand in exchange for the magazine.
On Fung’s most recent trip to Shelbyville, Brown told Fung that beginning in the new year he would no longer be permitted to barter with Fung, because once the MONEY Act becomes effective, all exchanges of valuable items will need to be conducted in U.S. currency. Brown suggests that in the future, the two can agree on a barter exchange, at which point Brown can pay Fung the newsstand price of Recoil Offgrid plus tax for the elderberry wine or bear jerky, whereupon Fung can simply pay Brown back the exact same amount of money for the magazine. Fung rejects the suggestion on freegan principle because it would mean having money in his control, even if only for a second. Brown asks Fung to come see him the next time he is in town, by which time Brown hopes to have some other option available.
Brown likes Fung despite his eccentricities, but he does not wish to violate the law and risk a potential prison sentence or fine. Brown consults with his attorney, Gwen Fortenbaugh. She concludes that the plain language of the MONEY Act criminalizes barter, even though that might not have been Congress’s intent. She also concludes that there is a good chance that the U.S. Attorney for Myrontana, Rudolph Javert, would in fact charge Brown and Fung for a MONEY Act violation because Javert holds a grudge against Fung for his acquittal on insider trading charges that Javert brought against Fung two decades earlier.
Fortenbaugh is an excellent lawyer but is not an expert in constitutional law. She hires you as a consultant to write the analysis and conclusion portions of a memo addressing only the following question: Is the MONEY Act, as applied to the exchange of Fung’s homemade elderberry wine and/or bear jerky for a magazine and thus effectively to compel Fung to use money, within any of the affirmative powers of Congress? (Assume for purposes of your answer that Fortenbaugh is correct that the MONEY Act forbids barter.)
Question 2 (40%)
Myrontana State University (MSU) is a nationally recognized and highly prestigious state university located in the idyllic college town of Ismaros. First-year students and sophomores at MSU are housed in the undergraduate dormitories of the Old Quadrangle. Juniors and seniors seeking to live on campus may enter a lottery for MSU housing. Private apartments in Ismaros are expensive compared with on-campus housing, so the lottery is highly competitive. Due to capacity limits, each year, only 40% of rising juniors and seniors who enter the lottery are accommodated.
MSU holds an additional lottery for “committed romantic relationship” (CRR) housing for eligible couples. Like the housing available for those students who succeed in the general housing lottery, the CRR housing is less expensive than comparable private rental housing in Ismaros. However, unlike the general on-campus housing, which is adjacent to the Old Quadrangle, CRR housing is three miles away, accessible by bicycle, long walk, or the free shuttle that MSU provides for enrolled students. In recent years, on average 90% of eligible couples who applied for CRR housing were accommodated.
Prior to 1998, CRR housing was designated as “married student housing” and reserved for married couples, but in that year the Myrontana legislature liberalized state law by extending many of the benefits of marriage to all “married couples and other couples, whether of the same or opposite sex, in long-term committed romantic relationships.” The statute specifically referred to “married student housing” at MSU and at two other state university campuses. The current CRR housing policy implements the 1998 statute by offering CRR housing to MSU juniors and seniors who are part of a “married couple or other couple, whether of the same or opposite sex, in a long-term committed romantic relationship.” The expansion of state law in general and the housing policy in particular were designed to accommodate gay and lesbian couples who, in 1998, were not legally permitted to marry. The Myrontana legislature legalized same-sex marriage in 2010, five years before the Supreme Court ruling in Obergefell v. Hodges, but the 1998 statute and thus the MSU CRR housing policy have not changed since then.
Chris Jenkins and Sharon Fieldcrest are both currently juniors at MSU. Jenkins was assigned female at birth and identifies as non-binary. Fieldcrest is a cisgender woman. Both Jenkins and Fieldcrest are asexual and aromantic (“ace” and “aro,” or “aroace”), i.e., they experience little to no sexual attraction and little to no romantic attraction. However, like many other people on the aroace spectrum, Jenkins and Fieldcrest can and do experience love, just not romantic love. In fact, shortly after they met, Jenkins and Fieldcrest fell in love with each other and formed a committed relationship.
At the end of their sophomore year at MSU, Jenkins and Fieldcrest applied for CRR housing. They stated on their application that they were in a “long-term committed non-romantic relationship,” noting their aroace orientation. Before the CRR lottery occurred, MSU’s Associate Dean for Housing, Archibald Eppsworth, emailed Jenkins and Fieldcrest to say that the MSU Housing Office had rejected their application as ineligible on the ground that “the policy requires a romantic relationship.” Associate Dean Eppsworth added a postscript: “I am sympathetic to your situation, but the CRR policy is word-for-word based on a state law that only the legislature can change. I suggest that you either marry each other or enter the general housing lottery as aspiring roommates.” Jenkins and Fieldcrest entered the general lottery, but they did not win MSU housing. As a result, they rented a one-bedroom apartment in Ismaros, paying 30% more than they would have paid if they had received CRR or general MSU housing.
Jenkins and Fieldcrest approached the LGBTQA+ Law Clinic at MSU Law School, where you are currently enrolled. The Clinic took on their case pro bono, and it was assigned to you. Write the analysis and conclusion portions of a memo addressing the key issues and likely outcome if Jenkins and Fieldcrest sue MSU and Epps in federal district court, alleging that their exclusion from the CRR lottery violates their federal constitutional rights to substantive due process and equal protection.
Question 3 (25%)
A federal statute, codified at 52 U.S.C. § 30121(a)(1)(A), forbids any foreign national from making any “contribution or donation of money or other thing of value, or [making] an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election.” Subsection (C) of the same Code section forbids foreign nationals from making independent expenditures expressly advocating the election or defeat of a clearly identified candidate. In Bluman v. FEC, 800 F.Supp.2d 281 (2011), a three-judge district court rejected a constitutional challenge to the statutory prohibition on campaign contributions by foreign nationals. The opinion was written by then-Judge (now-Justice) Brett Kavanaugh and relied on Supreme Court cases holding “that the government may bar aliens from voting, serving as jurors, working as police or probation officers, or teaching at public schools. Under those precedents,” the court said, the federal ban at issue here readily passes constitutional muster.”
Bluman was heard by a three-judge district court pursuant to Section 403 of the Bipartisan Campaign Reform Act and 28 U.S.C. § 2284. In such cases, there is a right of appeal directly to the U.S. Supreme Court. The plaintiffs took that appeal, whereupon the Supreme Court summarily affirmed the three-judge court’s ruling without writing its own opinion. By contrast with the denial of discretionary review via a writ of certiorari, as a technical matter, a summary affirmance is a precedent of the Supreme Court. In practice, however, the Justices give less precedential weight to summary affirmances than to their prior decisions announced in reasoned opinions following full briefing and oral argument. Accordingly, the Justices could reconsider the issue in Bluman without giving the prior decision the full stare decisis effect that would be due to most of their other prior decisions.
Bluman was decided after Citizens United v. FEC, which then-Judge Kavanaugh’s opinion sought to distinguish. Are you persuaded that the cases are distinguishable? Write an essay addressing the question whether, under the logic of Citizens United and the Supreme Court’s other campaign finance precedents, the ban on foreign campaign contributions and foreign independent expenditures should be considered unconstitutional.
END OF EXAM