A Constitutional Law Exam Featuring the 25th Amendment, Self-Pardons, a Claimed 2nd Amendment Right to Hunt with Crossbows, and Congressional Power to Legislate RE Abortion
Today--on the four-year anniversary of an attempted overthrow of the U.S. government--Congress meets to confirm the election of that insurrection's intended beneficiary and one of its leading instigators. It is a stunning turnaround that will likely be followed in two weeks by pardons for the participants. Much can and should be said about this momentous anniversary. But not by me, at least not today.
Instead, for your amusement and consistent with my longstanding practice, below I reproduce the exam I gave my first-year constitutional law students last month. With four years of constitutional crises rapidly approaching, I decided I didn't need to try to anticipate hypothetical calamities from the second Trump administration just yet. So instead, I set question 1 at the end of the Biden administration (just a few weeks from now in fact) and question 3 in an imagined future Buttigieg administration with a Democratic Congress. Sandwiched in between, I used a genuine North Dakota regulation banning crossbow hunting except for persons with certain disabilities to pose the age-old question whether the restriction on adults who don't qualify for the exception violates the 2nd Amendment (or a putative substantive due process right to hunt or even equal protection). Is that an unexpected question for a vegan instructor to ask? Absolutely. That's part of why I posed it.
With the rise of generative AI, I no longer give take-home exams. Students had a 2,500-word limit and four hours to complete the exam. They were permitted to consult their casebooks and notes but were locked out of the Internet. DoL readers should feel free to exceed the word limit and take as much time as they need, but I won't grade their answers. Good luck!
--------------------------------------------------------------------------------------------------------------------------
Question 1
Pursuant to his doctor’s recommendation, on January 18, 2025, President Biden has a colonoscopy, for which he receives intravenous sedation. At 7:23 a.m., just before being sedated and knowing that he will be unable to discharge the powers and duties of his office while sedated, Biden sends the following text message to the Speaker of the House and President pro tempore of the Senate:
“I’m about to be knocked out by the doc. While I’m out, Kamala will be prez by operation of 25A, Sec 3.”
Biden wakes up from his procedure at 9:15 a.m that same day, January 18. He remains tired and groggy, however, and upon his return to the White House, he goes to the residence quarters to take a nap. Biden awakes and regains his normal state of lucidity by 3 p.m. However, he forgets to send a follow-up text until the next morning (January 19, 2025) at 10:34 a.m., when he sends the following text message to the Speaker and President pro tempore:
“I woke up at 3 in the afternoon yesterday. Been back on the job since then. At least for one more day. 😂”
Meanwhile, at 9 a.m. on the morning of January 19, 2025, Vice President Harris enters the Oval Office, where an aide hands her a document to sign. It is an “unconditional pardon to all persons who served in the Biden administration or otherwise in any capacity in the federal government from January 20, 2021 to January 20, 2025, including but not limited to Special Counsel Jack Smith and his staff, former members of Congress Elizabeth Cheney and Adam Kinzinger, and Senator Adam Schiff, for any federal crimes they committed or allegedly committed at any point in their lives.”
The aide informs Harris that the pardon document was prepared in accordance with President Biden’s instructions. Harris expresses skepticism about the necessity of the pardon, which she describes as “way overbroad.” She then adds: “I guess Joe figured there’s no other way to prevent the incoming administration from targeting its perceived political enemies with baseless prosecutions. But I mean, there is at least one other way.” She then calls in a loud voice: “Lloyd! Tell Seal Team Six to take Trump out!” Harris then laughs heartily and signs the pardon “Kamala D. Harris, acting President.”
On January 22, 2025, Secret Service agent Douglas Whistle is assigned to President Trump’s detail. The president compliments Whistle on his neatly polished shoes, whereupon Whistle, who was just outside the Oval Office when Harris signed the pardon, relates the foregoing account to Trump. He says that he believes that when Harris yelled “Lloyd” she was calling to Lloyd Austin, Secretary of Defense. (Austin was not in the White House when Harris called his name.) Upon hearing Whistle’s account, Trump picks up the phone and demands to speak to Pam Bondi, whom he has nominated to be Attorney General.
On February 20, 2025, Bondi (who by this point has been confirmed by the Senate as Attorney General) announces that a federal grand jury in Florida has issued an indictment of former Vice President Harris for attempting to assassinate the President-elect in violation of 18 U.S.C. § 1751. Anticipating an objection to the filing of charges in Florida rather than the District of Columbia, the release states that “at the time of the attempt, the President-elect, its target, was in Florida.”
Former Vice President Harris has hired a highly regarded law firm specializing in criminal defense. You are an associate in the firm. If there is a trial, the partner in charge of the case intends to argue to the jury that Harris did not commit the alleged crime because her statement about Seal Team Six was only a joke. However, the partner would like to have the indictment dismissed before trial and is working on two theories. She asks you to write an objective memo addressing the following two questions:
I. Does the pardon Harris signed on January 19, 2025, provide for an effective defense against her prosecution?
II. Does Harris have immunity to prosecution under Trump v. United States, 605 U.S. 593 (2024)?
Write only the analysis and conclusion portions of the memo.
Question 2
A regulation promulgated by the North Dakota Game & Fish Department allows a person with a “physical condition” sufficiently “serious to render the person unable to hunt with archery equipment” consisting of “a compound, long or recurve bow with a minimum draw weight of 35 pounds” to apply for a permit that allows the person to hunt using a crossbow. North Dakota forbids persons without such a medically documented disability to hunt using a crossbow but does issue licenses for hunting with firearms and for other forms of bowhunting.
Paula Huntington is a 31-year-old resident of Fargo, North Dakota and a recreational crossbow hunter. When she lived in New York State, Huntington hunted with a crossbow, as allowed by New York State law. She does not have any physical disabilities that qualify her for a crossbow hunting license in North Dakota. Learning to use a different kind of bow and arrow or a rifle to go hunting would be time-consuming. Because of Huntington’s demanding job as a resident in a hospital in Fargo, that would prevent her from hunting at all, at least for several months. It would also mean she could not use her nearly brand new TenPoint Nitro 505 Crossbow, for which she paid more than $3,000.
Huntington consults with a partner at a law firm in Bismarck, North Dakota, at which you are an associate. She would like to sue Jeb Williams, the Director of the North Dakota Game & Fish Department, for an order enjoining him from enforcing the licensing requirement for crossbow hunting as unconstitutional. Accordingly, the partner asks you for an objective memo addressing the strengths and weaknesses of the following federal constitutional claims:
I. The North Dakota regulation, as applied to Huntington, violates the Second Amendment, as incorporated via the Fourteenth Amendment.
II. The North Dakota regulation, as applied to Huntington, violates her substantive due process right to hunt.
III. The North Dakota regulation, as applied to Huntington, violates equal protection, insofar as it discriminates against her on the ground that she lacks a disability.
Write only the analysis and conclusion portions of the memo.
Here are some additional facts that you might find relevant:
A) The crossbow was invented in China about 2,500 years ago. It was first seen in Europe (in Greece to be exact), nearly 2,000 years ago.
B) Crossbows were widely used as a weapon of war throughout the Middle Ages but by the 18th century had been almost entirely supplanted for that purpose by firearms.
C) Crossbows were used for hunting in colonial America and throughout the first century of the American republic.
D) Crossbows continue to be used for hunting today. There are currently approximately one million Americans who own crossbows they use for hunting.
E) The framers and ratifiers of the Constitution and Bill of Rights were aware of the unpopularity of the English Game Act of 1671, which allowed only the wealthy to hunt. However, it is by no means clear that 18th century critics of the Game Act thought it infringed a right to keep and bear arms that encompassed hunting; rather, insofar as opposition to the Game Act was connected to arms possession more broadly, it was chiefly because of the worry that people who were unable to use their weapons for hunting would be disarmed and thus unable to provide forceful resistance to tyranny.
F) Among the many proposals that were considered in the drafting of the Bill of Rights, one, from Anti-Federalists in Pennsylvania, proposed that the Constitution should not be ratified unless it was amended to include the following language: “the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game . . . .” None of the other proposals that informed the drafting of the Second Amendment referred to hunting.
G) American colonies and states in the early Republic regulated hunting. Massachusetts, for example, passed one of the earliest game laws in 1766, restricting deer hunting during certain months. Other states, including Pennsylvania and Virginia, developed similar game management regulations in the late 18th and early 19th centuries. These early regulations reflected both conservation concerns and the practical need to manage wildlife resources in developing frontier societies.
H) Beginning in the 1970s, many states began to ban or restrict crossbows for hunting. They did so for the safety of hunters and for conservation purposes. Because crossbows are more lethal than other forms of bowhunting, some legislators and regulators have concluded that they pose greater risks to humans and a greater risk that crossbow hunters will kill more game animals than permitted by law. In addition, some conventional bowhunters regard the use of crossbows as a kind of “cheating” because a crossbow requires less skill and strength to operate than a conventional bow and arrow; it is not clear to what extent this concern motivated the North Dakota regulation.
I) Although crossbows are more lethal than conventional bows, they are less lethal than nearly all firearms used for hunting.
Write (the analysis and conclusion portions of) the memo.
Question 3
Following rampant inflation due to President Trump’s tariffs and the decimation of the agricultural work force due to mass deportations, Democrats take control of both houses of Congress in the 2026 midterm election. In the 2028 election, Democratic nominee Pete Buttigieg wins the presidency and Democrats win overwhelming majorities in Congress, building on their earlier gains.
President Buttigieg quickly negotiates an abortion rights treaty with New Zealand, which the Senate approves 68-32. Congress then enacts the Roe v. Wade Restoration Act (RVWRA), which creates a federal statutory right to abortion “before viability of the fetus or for the health or life of the pregnant person at any point in pregnancy.” RVWRA provides for criminal penalties to be imposed on “any person who enforces or attempts to enforce any state or local law inconsistent with the substantive provisions of this Act.” It also authorizes any person “facing the risk of civil or criminal liability for performing an abortion protected under this Act” to bring a lawsuit in federal court to “enjoin enforcement of the state or local law under which such liability is threatened.” RVWRA cites “the Commerce Clause, the Treaty power, Section Five of the Fourteenth Amendment, and/or the Necessary and Proper Clause” as constitutional authority for the Act.
Dr. Wilbur Larch is an obstetrician who formerly practiced medicine in Corpus Christi, Texas. Dr. Larch closed his practice in 2022 out of fear that he could be prosecuted or sued for performing an abortion or even for providing some forms of medical care to patients who experienced miscarriages, given various strict abortion regulations in Texas, including a law forbidding all abortions except those necessary to prevent death or “a serious risk of substantial impairment of a major bodily function.” Since closing his Corpus Christi practice, Dr. Larch has been working at a hospital in Chicago, but he would like to resume his practice in Texas, where his friends and family remain. He seeks the advice of a law firm at which you are an associate as to whether he can rely on RVWRA to pre-empt the strict Texas abortion laws.
The partner in charge of the case instructs you to write the analysis and conclusion portions of an objective memorandum addressing the question whether RVWRA falls within the affirmative power of Congress and therefore pre-empts contrary state laws. Do not address standing, ripeness, or other aspects of justiciability; the partner has asked a different associate to address those issues.
END OF EXAM