Federal Courts Exam Spring 2024, Featuring a Trump Imprisonment and Conviction in the Hush-Money Coverup Case
Happy Memorial Day. Meanwhile, closing arguments in the hush-money coverup prosecution of Donald Trump are scheduled for tomorrow, with the jury likely to get the case soon thereafter. What happens if he's convicted? Question 2 of the Federal Courts exam to which I subjected my students explores one set of possibilities. There's also other stuff here to make your head hurt. In the age of AI, I no longer give take-home exams. This one was open-book, open-notes, closed network. The students had four hours and a limit of 2,500 words in total. Take as long as you want and write as much as you like. If you submit answers, don't expect me to grade or comment on them. Enjoy!
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Question 1 (30 percent)
In November 2024, President Biden is re-elected, Democrats re-take the House, and they gain two seats in the Senate, whereupon they abolish the filibuster, requiring only a simple majority to enact legislation. Congress then passes and the President signs the Immigrant Bill of Rights Act (IBRA). Among other things, it provides:
Sec. 401: Notwithstanding any other provision of law, any person who, having entered the United States lawfully or otherwise, is arrested, detained, or deported for allegedly violating U.S. immigration law by any agent of any state or local government not acting on express instructions issued by the Secretary of Homeland Security shall be entitled to sue the arresting, detaining, and/or deporting officer, as well as the state, and/or local government, which shall be jointly and severally liable for the greater of actual damages or $1 million in any court in the United States.
Sec. 402: This Act hereby eliminates all immunities that any defendant sued under it might otherwise claim. Among other things, it is an express abrogation of state sovereign immunity pursuant to Section 5 of the Fourteenth Amendment because state and local law enforcement targeting of immigrants reflects a pattern of racially discriminatory conduct by states. Alternatively, Congress has plan-of-the-Convention abrogation authority because the Constitution gives Congress power over immigration. See Arizona v. United States, 567 U.S. 387 (2012).
Maria Gutiérrez is a 31-year-old Honduran citizen who, along with her two children ages 7 and 9, fled her native country in fear when her husband was killed by gang members for refusing to join their ranks. After making a perilous journey on foot, she entered the United States at a legal border crossing in Eagle Pass, Texas, and claimed refugee status. The government gave Gutiérrez a court date to appear before a U.S. Immigration Judge and permission for her and her children to remain in the country pending her hearing.
With the assistance of an aid worker, Gutiérrez immediately took her children to a local church that provides free English classes to immigrant families, regardless of their legal status. While her children were in class, Gutiérrez exited the church to look for the aid worker, whereupon she was stopped by an officer of the Texas National Guard, who was deployed in the area pursuant to Operation Lone Star, an effort by the State of Texas “to fill the dangerous gaps created by the Biden Administration’s refusal to secure the border.” The officer arrested Gutiérrez and took her to jail, where she remained for four days. She was released without explanation.
Gutiérrez found the aid worker, who contacted a pro bono immigration attorney to help her prepare for her asylum hearing. Upon learning of Gutiérrez’s arrest and detention, that attorney persuaded her to file a federal district court lawsuit against the State of Texas and one “unknown named agent.” The suit seeks damages for $1 million, invoking IBRA. The complaint sets forth the facts above and further alleges that at no time did the Secretary of Homeland Security authorize Operation Lonestar.
Gutiérrez, who does not speak or understand English, is not confident that she could identify the officer who arrested her. Through a translator, she told her attorney that he was a tall man who seemed angry and repeatedly muttered the phrase “damned illegals” as he took her into custody. The State of Texas files a pre-trial motion to dismiss the claim against the State based on sovereign immunity. Analyze the legal issues that motion presents.
Question 2 (30 percent)
Now consider an alternative version of reality. In early June 2024, former President Trump is convicted of felony falsification of business records in violation of New York State law. He is sentenced to two years in prison but is free on bail pending appeal. Before the Appellate Division (the state’s intermediate appellate court), Trump’s lawyers allege multiple errors of state law on the part of the trial court. In an opinion issued in September 2024, the Appellate Division unanimously rejects Trump’s appeal. He then seeks and obtains review from the New York Court of Appeals (the state’s highest court), which schedules oral argument for November 12, 2024, one week after the election. Trump wins the election. His lawyers immediately file a supplemental letter brief in the New York Court of Appeals arguing that his sentence must be suspended while he is President because allowing a state to hold a sitting President in prison would violate the Supremacy Clause.
The New York Court of Appeals issues a ruling on January 2, 2025. It is unanimous in affirming the Appellate Division’s rejection of Trump’s state law grounds for appeal. By a 5-2 vote, the Court also rejects Trump’s Supremacy Clause argument. Here is a summary of the key language from the majority opinion by Judge Rivera:
As we explained in U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 33 N.Y.3d 84, 89 (2019), “[t]o preserve an argument for review by this Court, a party must raise the specific argument in [the trial court] and ask the court to conduct that analysis in the first instance . . . . While in some circumstances the Appellate Division has interest-of-justice jurisdiction to review an issue raised for the first time on appeal, this Court has no power to review either the Appellate Division’s exercise of its discretion to reach that issue, or the issue itself.” (Citations and internal quotation marks omitted.) Here, appellant raised his Supremacy Clause objection for the first time in this Court. Thus, we are without power to review it.
Appellant argues that he raised his Supremacy Clause objection only in this Court because at the time of sentencing in the trial court and argument in the Appellate Division, he had not yet won election. However, even if we had the equitable discretion to waive the bar on new arguments in this Court—and to be clear, we do not—we would not exercise that discretion. At the time of sentencing, appellant, as a major-party candidate for President, was certainly on notice that he could become President shortly and nonetheless failed to raise the Supremacy Clause objection. Accordingly, the appeal is rejected.
Judge Troutman joined the Court’s opinion but also wrote a concurrence, joined by three of her colleagues. It states in full:
If we were to consider appellant’s novel argument on the merits, I would reject it. No one is above the law. Appellant has had a fair trial and was duly convicted and sentenced. Nothing in the text of the Supremacy Clause or any other part of the U.S. Constitution robs states of the power to enforce their criminal laws in the absence of valid federal legislation having preemptive effect. See U.S. CONST. AMEND X. If, as appellant contends, his lawful imprisonment in New York renders him incapable of performing the duties of the Presidency, the remedy is to be found in the Twenty-Fifth Amendment, not in any imagined penumbras or emanations of the Supremacy Clause.
The New York Court of Appeals stays its ruling to enable Trump to file a certiorari petition with the Supreme Court, which he does immediately. In a decision that surprises nearly all observers, the Court denies cert. Justice Alito, joined by Justice Thomas, writes a blistering dissent from the denial of cert in which he asserts that “the decision below is nothing short of insurrectionist election interference.”
The cert denial comes on January 23, 2025, just days after Trump’s inauguration. The result is the lifting of the stay, whereupon Trump reports to prison in New York and his lawyers file a habeas corpus petition in the federal district court for the Southern District of New York. It contends that State imprisonment of a sitting President violates the Supremacy Clause and seeks Trump’s release for the duration of his Presidency.
What plausible arguments can the Manhattan District Attorney make to urge the court that Trump is not entitled to habeas, even if there is merit to his Supremacy Clause claim? How strong are those arguments?
Question 3 (40 percent)
You’re still in the version of reality described by Question 2. Assume that in addition to Trump’s victory in the Presidential race, Republicans held the House and gained two seats in the Senate, giving them a majority, whereupon they abolished the filibuster, requiring only a simple majority to enact legislation. Congress then passes and the President (who remains in prison while his habeas petition is pending) signs the Effective Remedies Act (ERA). In relevant part it provides:
Section 1: Notwithstanding any other provision of law, no court in the United States shall have jurisdiction to enjoin any state or local government official against enforcing a provision of state or local law on the ground that such enforcement would violate the Constitution or laws of the United States, except insofar as a federal statute other than 42 U.S.C. § 1983 expressly authorizes a cause of action for injunctive relief.
Section 2: In any case in which a cause of action for injunctive relief under 42 U.S.C. § 1983 or the doctrine of Ex Parte Young would have been available prior to the effective date of this Act, a person seeking such relief may file a petition for an “entitlement declaration” from an Administrative Law Judge (ALJ) in the Effective Remedies Enforcement Agency (EREA) hereby created. Notice and an opportunity to be heard shall be provided to the state or local government official or officials against whom relief is sought (the “defendant(s)”). Proceedings before an ALJ in the EREA shall be governed by the Federal Rules of Civil Procedure to the extent practicable. An ALJ who determines that the person seeking relief has a valid claim shall issue a provisional declaration of entitlement.
Section 3: Notwithstanding any other provision of law, an ALJ’s provisional declaration of entitlement shall be reviewable only by the Secretary of the EREA, who has sole responsibility for affirming or rejecting an ALJ’s decision with respect to a final declaration of entitlement, except that:
a) If the person who brought the original petition before the EREA receives a final declaration of entitlement from the Secretary, that person shall have the right to sue the defendant(s) on the declaration for an injunction in any state court of general jurisdiction that has personal jurisdiction over the defendant(s). The state court in such cases shall give de novo consideration to any objections or defenses raised by the defendant(s).
b) If the person who brought the original petition before the EREA does not receive a final declaration of entitlement from the Secretary, that person shall have the right to bring an original action seeking reversal of the Secretary’s determination and an injunction in any state court of general jurisdiction that has personal jurisdiction over the defendant(s). The state court in such cases shall uphold the Secretary’s determination so long as it is not arbitrary and capricious.
c) In any state court action pursuant to subsection (a) or (b) of this Section, further judicial review may be had by either party pursuant to the State’s appellate rules, but notwithstanding any other provision of law, the U.S. Supreme Court shall not exercise appellate jurisdiction in any case described in this Section.
Assume for this question that Myrontana is a State of the Union. A newly enacted Myrontana Law—the Worker Shareholder Value Rights Act (WSVRA)—requires employers in the state who employ ten or more employees and that invest any funds on behalf of their employees to “invest only in a diversified portfolio that does not exclude companies that profit from fossil fuels.” The WSVRA empowers the Myrontana Attorney General to impose annual fines of “up to $0.50 per $1.00” of investments on any company that violates the WSVRA. Myrontana Attorney General Jefferson Beauregard has announced his intention to “fully enforce” the WSVRA.
People For a Livable Future (PFLF) is a nonprofit organization that works to combat climate change. It employs 27 full-time employees in Myrontana and is thus subject to the WSVRA. Consistent with its mission, PFLF leadership do not wish to invest any money set aside for employee pensions in companies that profit from fossil fuels.
PFLF sues Attorney General Beauregard in federal district court for the District of Myrontana, alleging that the federal Employee Retirement Income Security Act (ERISA) “expressly authorizes a cause of action for injunctive relief,” but the federal district judge dismisses the complaint on the ground that the express cause of action under ERISA, 29 U.S.C. § 1132, does not cover actions of the sort brought by PFLF, “which have heretofore been brought as Ex Parte Young cases.” Rather than appeal that ruling, PFLF seeks a declaration of entitlement from the EREA on the grounds that: (a) ERISA preempts the WSVRA; and (b) WSVRA violates PFLF’s First Amendment rights.
The ALJ assigned to the case rules in favor of PFLF on the ERISA preemption claim but not the First Amendment claim. The Secretary of the EREA reverses that determination with respect to the ERISA preemption claim but not the First Amendment claim, thus issuing a final agency ruling that PFLF is not entitled to a final declaration of entitlement on either claim. Pursuant to ERA Section 3(b), PFLF files an action in Myrontana Superior Court, which rejects its claims after stating that the Secretary’s rejection of a declaration of entitlement “is probably wrong on both grounds but not arbitrary and capricious.” PFLF appeals to the Myrontana intermediate appellate court, which summarily affirms. PFLF then seeks and receives discretionary review by the Myrontana Supreme Court. After briefing and oral argument, the Myrontana Supreme Court issues a unanimous ruling that states, in its entirety:
The decision below is vacated because the Superior Court was without subject matter jurisdiction. The courts of this state have no authority to review determinations of a federal agency.
PFLF consults you about filing a petition for certiorari with the U.S. Supreme Court. Analyze all of the major procedural issues that such a petition would raise.
End of Exam