St Thomas University School Of Law
Professor Siegfried Wiessner
December 9, 1993
Time (4) HOURS
1. YOU WILL BE ALLOWED THE TOTAL OF (4) BLUE BOOKS. Any writings beyond the first four blue books will be disregarded.
2. This is a closed book exam. No materials are permitted in the examination room.
3. The examination consists of five (5) pages and five (5) questions. The questions are not equal in weight.
4. Read all questions carefully. Outline your answer before you write. Credit is given for the quality of your analysis and organization.
5. Do not assume additional facts or information other than those given in the question(s).
6. Answer all questions.
7. Please write legibly. Illegible writing will not be counted toward your grade.
8. Please write only on one side of the page and on every other line of the blue book.
9. Leave a generous margin for grading purposes.
10. Turn in your copy of your examination with your blue books.
11. GOOD LUCK!
1. (25 % of grade)
American troops are being committed to the war-torn country of Somalia as a part of a multinational intervention force under the auspices of the United Nations. Under an executive agreement between the President of the United States and the Secretary-General of the United Nations, they are sent there to help provide security for a humanitarian effort to save the people of Somalia from the bitter fate of sure starvation.
The United States contingent becomes involved in clashes with a warring faction.
Among other casualties, American soldiers’ lives are lost as well. Both houses of Congress pass a bill, dubbed the "U.S. Out Of Somalia Act", according to which US troops are to be withdrawn from Somalia by March 31, 1994. Assume that President Clinton vetoes the bill, but that his veto is overridden by two-thirds of majorities in both the House of Representatives and the Senate.
Suppose that President Clinton decides that the troops will remain in Somalia "until their job is done." He refuses to accept any firm deadline on the withdrawal of troops. He argues that Congress has no power in the field of foreign affairs, and that the executive agreement binds the United States to its commitment to provide armed forces to the United Nations until the goals of the humanitarian assignment are achieved. The US Out Of Somalia Act thus, in his opinion, violates the constitution.
Suppose, also, that the US troops remain in Somalia after March 31, 1994. A group of Congressmen who drafted, and voted for, the Act asks for an injunction in federal court mandating the President to withdraw the troops.
Will the court grant this request?
2. (15 % of grade)
Faced with alarming facts regarding growing illiteracy in America, Congress decides to fund a program designed to combat this trend by promising every state which decides to offer drop-out reintegration programs and adult reading classes $500 per student enrolled in such activities.
The State of Florida does not like the idea of the federal government determining curricular choices and thus infringing, as it sees it, on the fundamentals of state sovereignty guaranteed by the Tenth Amendment to the United States Constitution. Its legislature passes a law prohibiting any of its' school systems to accept money from the federal government under this program.
A public school principal eager to collect these federal funds asks for your advice on the constitutionality of the state statute
3.(20 % of grade)
1. The State of Oklahoma enacts legislation that would provide for mandatory sterilization of repeat sexual offenders.
Rudolph, a foreign national, gets convicted of rape for the second time. The Oklahoma court imposes the sentence of an extended prison term and compulsory sterilization. Rudolph considers the action of the Oklahoma court a violation of his fundamental rights under the United States Constitution. Is he right?
2. After Rudolph has finished serving his sentence, the United States Immigration and Naturalization Service and the United States Attorney General consider the issue of his continued presence in the U.S. Ultimately, the Attorney General decides to stay Rudolph’s deportation, based on compelling personal reasons. The United States Congress, by Joint Resolution of both houses presented to the President for an (unexercised) veto, overrules the Attorney General and mandates that Rudolph be deported forthwith.
Your client, Rudolph, is committed to fighting this decision in federal court. Will he succeed?
IV. 20% of grade
Draft comprehensive health care legislation, under the title of the "National Health Security Act", envisions the realization of universal individual access to health care and the creation of an independent National Health Board responsible for setting national standards as well as overseeing the establishment and administration of a new health system by the states.
Under this new system, state-certified health plans would provide coverage for a nationally guaranteed comprehensive benefit package through contracts with regional or corporate alliances. The states would have to develop and implement plans to meet enrollment, access, and quality standards established by the federal government, assure that plans and providers meet essential national standards through licensure and certification procedures, and monitor the extent to which plans make the full range of benefits covered in the guaranteed package accessible to all population groups no later than January 1, 1997. Each state would have to establish one or more such regional health alliances responsible for providing health coverage to residents in every area of the sate. The state would also ensure that all eligible individuals enroll in a regional alliance and that all alliances offer health plans that provide the comprehensive benefits package.
The proposed National Health Board would review plans submitted by the states for implementation of the new health care system. In the event that a state fails to meet the deadline for establishing regional health alliances or fails to operate the alliance system in compliance with federal requirements, the National Health Board would inform the Secretary of the Department of Health and Human Services of a state’s failure to comply. The Secretary would have the authority to order the withholding of federal appropriations. If a state persists in its failure to comply with federal requirements, the Secretary of Health and Human Services would be required to take one of the following actions:
1. Dissolve an existing health alliance and establish one or more regional alliances in compliance with federal regulations.
2. Contract with private parties or others to establish and operate regional alliances.
3. Order regional alliances or health plans to comply with specific federal requirements.
4. Take other steps as needed to assure coverage.
When the National Board notifies the Secretary of Health and Human Services that a state has failed to comply with federal requirements, the National Board would also have to notify the Secretary of the Treasury. The Secretary of the Treasury would impose a payroll tax on all employer in the state. The payroll tax should be sufficient to allow the federal government to provide health coverage to all individuals in the state and to reimburse the federal government for the costs of monitoring and operating the state system. An alliance operating under the supervision of the Secretary of Health and Human Services would be responsible for meeting all requirements imposed on regional health alliances. When a state demonstrates to the National Health Board that it is prepared to resume its statutory responsibilities, the state would be able to establish its own alliances or take over management of alliances established under federal supervision.
1. Does the Constitution include an individual right to health care? Discuss.
2. Evaluate the constitutionality of the aspects of the draft National Health Security Act described above.
V. 20% of grade.
Suppose that, in a variant of the draft National Health Security Act, the National Health Board would consist of seven members appointed by the President by and with the advice and consent of the Senate. The President would nominate Board members on the basis of their experience and expertise in relevant subjects, including health care finance and delivery, state health systems, consumer protection, business, law or delivery of care to vulnerable populations. One member of the Board would be a sitting federal judge, another the Comptroller General of the United States (see note). All Board members would have to be citizens of the United States of America. The President could remove a member of the National Health Board only for serious neglect of duty or malfeasance in office.
Suppose also that, under this variant of legislation, a national health security card is developed that would guarantee that health coverage travels with every citizen and legal resident of the United States as circumstances change, whether the holder switches or loses jobs, or moves to another state. As a "smart card" which carries information in a computer chip, it would allow access to information about essential features of the health status of its holder as well as basic registration information, including the health plan in which the card holder is enrolled. Its main purposes are to provide uncomplicated access to essential medical information to treating physicians as well as to allow for faster registration and billing procedures.
Bill Billcollector, a billing agent at Jackson Memorial Hospital, is interested in the health status of Andy, his girlfriend’s acquaintance. In particular, Bill would like to know whether Andy is HIV positive. Bill uses the card to find out about this information as Andy pays his hospital bill with him.
Discuss the constitutionality of both the composition of the National Health Board and the concept of the national health security card as described.
(Note) The Comptroller General, head of the General Accounting Office, is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate. The Comptroller General is removable only at the initiative of Congress, either by impeachment, or by a Joint Resolution of Congress, subject to Presidential veto, on the basis of permanent disability, inefficiency, neglect of duty, malfeasance, or commission of a felony or conduct involving moral turpitude. (back to text)