The Professors Graham
Holiday 2013 Semester
- You have three hours to complete the exam, which consists of a single question.
- This is a closed-book exam.
- Assume that the facts as given are true.
- Good luck!
On January 3, 2012, Congress passed the Naughtiness Obliteration and Elimination Law of 2012 (P.L. 112-000.5) (hereinafter “the NOEL”). President Obama signed the NOEL into law three days later.
Among its findings, the NOEL relates that “there exists an epidemic of naughtiness among the nation’s children . . . neither the states nor private institutions can control this plague on their own . . . therefore, federal action is not only desirable, but necessary.” As enacted, the NOEL:
(1) Imposes a naughtiness “fee” of $50 upon each American child for every documented instance of their “naughtiness.” Revenues from this “fee” are to support the Federal Nice Fund (FNF), a newly created fund for public-works projects in NOEL-compliant states. (NOEL, § 3(a).)
(2) Creates a new federal agency, the Naughtiness Review Board (NRB), tasked with drafting binding rules to distinguish true “naughtiness” from merely obstinate, immature, or annoying behavior, all of which lie beyond the scope of the NOEL. (Id., § 7(d)(2)(D)(iii).)
(3) Assigns to individual states and localities exclusive responsibility for identifying specific instances of naughtiness (in a manner consistent with NRB rules), and for collecting the associated “fees.” (Id., § 14(b)(1)(B)(ii)(#)(?).) If a state declines to perform these tasks, the NOEL requires the federal government to place that state on a federal “naughty” list. Placement on this list (1) automatically makes a state ineligible to receive FNF funds, and (2) generates a conclusive presumption that all children within the state are “naughty.” (Id., § 15(c)(3)(Q)(iv)(!)(@)(?)(®).)
(4) To ensure full compliance, the NOEL bars any “person, group, or agency” that receives “funding, or any benefit from the federal government” from making a “material naughtiness determination” contrary to rules promulgated by the NRB, with the consequence of such a contrary determination being withdrawal of the federal funding and/or other benefit. (Id., § 22(z)(12)(F)(vii)(¥)(‰) (LOL)(¿)(?)(D).)
Also, the passage of the NOEL somehow caused a penny scale to topple onto a woman standing at a train station in Brooklyn.
Question: Assume that on December 1, 2013, the following plaintiffs bring suit in federal district court, challenging the constitutionality of the NOEL:
1) Violet Thompkins, a nine-year-old Vermont resident whom an NRB rule classifies as “naughty” because she refuses to eat her broccoli at supper;
2) Thaddeus and Harriet Thompkins, Violet’s zealously overprotective parents;
3) Bobby Chavez, a goody-goody seven-year-old Texas resident, who nevertheless has been classified as “naughty” because his state refuses to participate in the NOEL scheme;
4) Ken Cuccinelli, attorney general of the state of Virginia, suing on behalf of that state, because he seems like he’d probably get involved in something like this; and
5) Santa Claus, who maintains his own “naughty” list for purposes of gift distribution, and receives a special exemption from the Federal Aviation Administration to fly around the nation, under the radar, on Christmas Eve.
Draft an analysis of these challenges to the NOEL in which you address:
(1) The arguments, sounding in the Constitution of the United States, that each plaintiff plausibly might advance against the NOEL (here, make certain to consider whether the plaintiff would have standing to raise these arguments);
(2) The government’s anticipated responses in defending the NOEL;
(3) How the courts are likely to rule; and
(4) The forms of relief available to each plaintiff, if any.
This was, in fact, last year’s card, as sent to our relatively short “snail mail” list of card recipients; I just updated the dates for this post.
For the past decade or so, my wife and I have prepared law-themed holiday cards. We started with a contract, moved on to a prospectus, wrote a couple of opinions, and since I started my current job in 2009 we’ve written a series of “exams.” These exam cards are little four-page numbers that we design to look like old-time exam booklets. Last year set itself up well for an ACA parody card.