Here is the distribution:
This exam was based on current events–indeed, it was the easiest fact pattern I’ve ever written. I copied, nearly verbatim, from President Trump’s January 27, 2017 executive order. I even copied President’s Trump distinctive signature to make it even more real. I twisted the facts around, such that Washington enacted the “Immigration Resistance Act of 2017.” Rather than focusing on the Establishment Clause and Due Process, which we have not yet covered, this question framed the issue in terms of federalism.
Here are some high-level thoughts about the answers.
- The first question considered whether the Attorney General, pursuant to 8 U.S.C. s 1373, could withhold $1 billion from Washington, a sanctuary state, that refused to share immigration information with the federal government. The best answers would discuss South Dakota v. Dole (and in particular Justice O’Connor’s discussion of “germaneness”) and the Chief’s opinion in NFIB (with a focus on the clear statement rule, and the coercion line). The top answers engaged with math, and analyzed where the withholding of $1 billion falls between the line in Dole and the line in NIFB.
- The second question considered whether a state could prohibit its state officials from sharing information about immigrants with the federal government. The best answers discussed the commandeering doctrine, and in particular, New York v. United States and Printz. The top answers questioned whether a requirement to merely share information amounted to commandeering. Indeed, this is a question currently being debated by scholars now.
- The third question threw a number of students for a loop: Washington criminalized federal requests for information about immigrants in the state. The key case here is M’Culloch v. Maryland, where the state tried to tax federal bank officials. CJ Marshall found that such a tax was designed to destroy the federal institution, and the power to tax is the power to destroy. Here, Washington would actually throw federal officials in prison. This is unconstitutional.
- The fourth question asked you to consider the interaction of two statutes through the lens of Justice Jackson’s pivotal concurring opinion in Youngstown. Virtually all of you recited Jackson’s three tiers. (Watch Judge Gorsuch explain the tiers during his confirmation hearing). However, few of you tried to reconcile the two statutes, which are in tension, based on whether Congress has, or has not sanctioned the executive’s action. There was no single correct answer, but I wanted more than merely restating Jackson’s opinion.
- The final question–the policy question–asked whether Judge Robarts should respond in his opinion to President Trump’s tweets. On the whole, all of you articulated opinions–the better papers incorporated precedent.The best answers brought to the fore clashes between the President and the Court: Marshall and Jefferson (Marbury), Taney and Lincoln (Merryman), FDR and Court-packing, Cooper v. Aaron, etc.