Part I of my ConLaw exam took place on the eve of World War I. In response to the Zimmerman Telegram, the Governor of Texas orders his national guard to construct a border wall to stop a threatened Mexican invasion; or is it to stop Mexican migrant workers? To find out, check the Governor’s carrier pigeon named “Tweet,” and then check the A+ answer.

Instructions: The year is 1917. The United States is on the brink of war with Germany. You are a legal adviser for the Governor of Texas. He has asked you to prepare a memorandum of no more than 1,000 words addressing five legal questions facing the Lone Star State. For purposes of this analysis, presume that the first eight Amendments to the Constitution apply to the states, by virtue of the Fourteenth Amendment.

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The year is 1917. The European Continent is divided by a brutal world war. To date, the United States has managed to stay out of the conflict with Germany. However, Germany has other intentions. British intelligence intercepts the Zimmerman Telegram, an encrypted cable sent from Germany to Mexico. The Telegram proposed that Mexico should fight the United States, alongside Germany. In exchange, Mexico can “reconquer the lost territory in Texas, New Mexico, and Arizona.” The Zimmerman Telegram is made public in March 1917. One month later, the House of Representatives and the Senate declare war on Germany.

Hobby, the Governor of Texas, becomes outraged when he learned about the Zimmerman Telegram, and proclaimed “Don’t mess with Texas!” He didn’t trust President Wilson to keep the Lone Star State safe. As a result, Hobby issues Executive Order #1, which provides:

As Governor of Texas, I direct the Texas National Guard to construct a 20-foot wall along the southern border with Mexico, to repel the imminent Mexican invasion, and protect the homeland.

Wilson is furious at Hobby, and argues that the wall would obstruct American foreign policy interests. With Wilson’s support, Congress promptly enacts the Only Congress Can Exclude Act of 1917 (“ONCE”). ONCE has three sections:

Section 1: It is the finding of Congress that the federal government, and not the state governments, should have sole control over the Southern border with Mexico.

Section 2: All state executive-branch officials are prohibited from assisting in the creation of a wall, barrier, fence, or any form of separation along the Southern border with Mexico.

Section 3: All state judges are hereby prohibited from assisting in the creation of a wall, barrier, fence, or any form of separation along the Southern border with Mexico

Undeterred, Hobby proclaims that the federal government does not have authority over Texas soil, and orders the Guard to build the wall.

The Governor initiates eminent domain proceedings to allow the state to take Blackacre, a ranch along the border in Brownsville. However, Judge Andy, a state court judge in Brownsville, dismisses the eminent domain proceeding for Blackacre, stating that Section 3 of ONCE divests his court of jurisdiction to hear the case.

Soon Hobby learns that building a wall along the 1,200-mile border with Mexico is harder than he had planned. There are not nearly enough Texas National Guard troops to perform the labor. To address the shortfall, he issues Executive Order #2, which provides:

As Governor of Texas, I determine that the construction of the border wall is of the utmost necessity for our homeland security. Accordingly, all able-bodied males between the age of 18 and 40 are required to enlist with the Texas National Guard. Enlistees will serve for a period of six months, with a salary of $1 per day.

Tens of thousands of Texans rushed to voluntarily enlist in the National Guard to help construct the wall, although many resisted. Jake, opposes the draft for two reasons: first, he does not want to be compelled to serve in the National Guard; second, his Quaker faith is pacifist, and he opposes all war.

Hobby, frustrated that his people oppose the Great Wall of Texas, issues Executive Order #3 to stir up some patriotism. It provides:

All students in Texas public schools, without exception, shall be required to recite this pledge at least once a day: “Honor the Texas Flag; I pledge allegiance to thee, Texas, one and indivisible.”

After the United States declares war on Germany, Mexico formally repudiates the Zimmerman Telegram, and announces that it will not invade Texas. In a private letter to his wife[1] sent by a carrier pigeon named Tweet, Hobby writes that he knows Mexico has no plans to invade Texas, but he still wants to build the wall to stem the flow of migrant workers from Mexico. A reporter from the Houston Chronicle intercepts Tweet, and publishes the message in the newspaper. Hobby disavows the personal message because the letter to his wife was not the Governor’s “official” position. Hobby stands by Executive Order 1, and maintains that the wall is essential for the homeland security of Texas.

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You are a legal adviser for the Governor of Texas. He has asked you to prepare a memorandum of no more than 1,000 words addressing five legal questions facing the Lone Star State. For purposes of this analysis, presume that the first eight Amendments to the Constitution apply to the states, by virtue of the Fourteenth Amendment.

1. Assess the constitutionality of Executive Order #1 and Section 2 of ONCE, as applied to Governor Hobby.
2. Assess the constitutionality of Section 3 of ONCE, as applied to Judge Andy.
3. Assess the validity of Jake’s two objections to the draft imposed by Executive Order #2 under the Due Process Clause of the Fourteenth Amendment and the Free Exercise Clause of the First Amendment, respectively.
4. Assess the constitutionality of Executive Order #3 under the Free Speech Clause of the First Amendment. (Do not address the Free Exercise Clause of the First Amendment in this analysis).
5. To what extent should courts scrutinize the Governor’s reliance on national security interests, when evidence outside the record suggests that those interests are pretextual, and indeed the Governor is acting based on different motives.

[1] Governor William P. Hobby’s wife was Oveta Culp Hobby (1905-1995), who attended, but did not graduate from, the South Texas College of Law. In 1953, President Eisenhower appointed Culp as the first female secretary of the Department Health, Education, and Welfare.