Federal Courts Exam 2025 Featuring State Incorporation of Federal Law and the (Real) Proposed No Kings Act
Per my usual custom, below I have posted the final exam I gave the students in my Federal Courts class this past semester. They had four hours to complete the exam and were permitted access to their casebooks, notes, and outlines but not the Internet or AI tools. Note that the "No Kings Act" quoted at length in questions 2 and 3 is taken verbatim from the actual bill that was introduced in the Senate last year. The scenario in question 1 is fictional, although its premise--state tax law incorporating federal tax law--is realistic.
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Question 1 (40 percent)
Assume for purposes of this question that Myrontana is a State of the United States, located in the (fictional) 13th Circuit. Myrontana law provides that in calculating how much state personal income tax they owe, taxpayers simply copy their “taxable income” from line 15 of their federal form 1040. Myrontana state law also incorporates other provisions of federal tax law. It does so dynamically—i.e., if there is a change to federal tax law, that change automatically results in a change in the incorporating Myrontana state law.
Athena Earthling is a 35-year-old U.S. citizen and resident of Myrontana who earns her living as a social media influencer, primarily via TikTok and YouTube. Her channel—Athena the Spiritual Atheist—generated approximately $200,000 in net revenue in 2024. Earthling is legally entitled to defer state and federal taxes on some of that money by depositing it into an Individual Retirement Account (IRA) pursuant to 26 U.S.C. § 408.
If Earthling were employed as clergy by a church, synagogue, mosque, or other house of worship, she would qualify either for an employee plan under 26 U.S.C. § 401(k) or, if the house of worship employing her did not offer one, could purchase an annuity contract (as a retirement savings vehicle) pursuant to 26 U.S.C. § 403(b)(1)(A)(iii) for a “minister,” defined elsewhere in the tax code as a “duly ordained, commissioned, or licensed minister of a church.” 26 U.S.C. § 414(e)(3)(B)(i). Federal regulations and case law define “minister” and “church” to include non-Christian clergy and houses of worship, respectively, but no regulation or case has thus far read these provisions to cover unaffiliated atheists like Earthling “ministering” to an online flock of social media followers. An annuity contract pursuant to 26 U.S.C. § 403(b)(1)(A)(iii) receives somewhat more favorable tax treatment (under both Myrontana law and federal law) than the IRA Earthling could open under § 408 or the so-called “solo 401(k)” she could create by treating herself as both employer and employee. Myrontana law dynamically incorporates each of the federal code sections mentioned in this paragraph.
The Myrontana Annuity Act (MAA) requires that every bank and savings & loan chartered by the state must offer qualifying customers the ability to purchase annuities contracts for ministers as described in 26 U.S.C. § 403(b)(1)(A)(iii) and incorporated into Myrontana law. Earthling sought to purchase such an annuity contract from the First Bank of Myrontana (FBM), which is incorporated in and has its principal place of business in Myrontana. However, she was told by the bank manager that she did not qualify because she is not a minister within the meaning of the law. The bank manager offered Earthling the opportunity to open an IRA or so-called solo 401(k) (under which a self-employed individual acts as both employer and employee), but she declined.
Earthling then sued FBM in the Superior Court (the state court of general jurisdiction) in Myrontana City. Her complaint asserted an implied right of action under the MAA. Earthling’s prayer for relief sought an injunction directing FBM to sell her an annuity contract that meets the specifications of 26 U.S.C. § 403(b)(1)(A)(iii). Earthling’s complaint contended that the term “minister” under 26 U.S.C. §§ 403(b)(1)(A)(iii) and 414(e)(3)(B)(i) under federal law and as incorporated by Myrontana law should be defined to include “religious advisors, agnostics, and atheists offering spiritual services, regardless of whether they are affiliated with any organization.” Otherwise, the complaint continued, the statute would violate the Establishment Clause of the federal First Amendment and/or the Establishment Clause of the Myrontana Constitution, which is worded similarly to the federal Establishment Clause but, according to the Myrontana Supreme Court, “reflects the distinctive history and values of Myrontana.” Although the complaint invokes federal constitutional avoidance, it does not state any federal causes of action.
FBM removed the case to federal district court for the District of Myrontana, whereupon Earthling filed a motion to remand to the Myrontana City Superior Court on the ground that the federal district court lacks jurisdiction or, in the alternative, should abstain from exercising such jurisdiction as it may have. You are a law clerk to the federal district judge to whom the case has been assigned.
How should the judge rule on Earthling’s motion?
In considering that question, you might find it helpful to know that:
(a) A couple of federal courts of appeals have held that 26 U.S.C. §§ 403(b)(1)(A)(iii) and 414(e)(3)(B)(i) do not violate the Establishment Clause, but there is no precedent on this point in the Myrontana courts, the 13th Circuit, or the U.S. Supreme Court.
(b) In considering whether to imply private rights of action from state statutes that are silent on the question, the Myrontana courts follow the practice previously followed by the U.S. Supreme Court in cases like J.I. Case v. Borak, 377 U.S. 426 (1964).
(c) The Tax Injunction Act, 28 U.S.C. § 1341, provides: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”
(d) One of the two statutes known as the Anti-Injunction Act, 26 U. S. C. §7421(a), provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” Persons who object to paying a federal tax may pay the tax and then sue for a refund in the tax court.
(e) The Myrontana Supreme Court accepts certified questions from the federal courts “only in cases of extraordinary urgency.”
The following narrative pertains to questions 2 and 3.
In the 2026 midterm elections, Democrats win majorities in both the House of Representatives and the Senate. After abolishing the filibuster, they pass the “No Kings Act” (NKA). Other than the title and findings section, it provides as follows:
SEC. 3. NO PRESIDENTIAL IMMUNITY FOR CRIMES.
(a) In General.—
(1) NO IMMUNITY.—A President, former President, Vice President, or former Vice President shall not be entitled to any form of immunity (whether absolute, presumptive, or otherwise) from criminal prosecution for alleged violations of the criminal laws of the United States unless specified by Congress.
(2) CONSIDERATIONS.—A court of the United States may not consider whether an alleged violation of the criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress.
(b) Rule Of Construction.—Nothing in this section shall be construed to immunize a President, former President, Vice President, or former Vice President from criminal prosecution for alleged violations of the criminal laws of the States.
SEC. 4. JUDICIAL REVIEW.
(a) Criminal Proceedings.—Notwithstanding any other provision of law, for any criminal proceeding commenced by the United States against a President, former President, Vice President, or former Vice President for alleged violations of the criminal laws of the United States, the following rules shall apply:
(1) The action shall be filed in the applicable district court of the United States or the United States District Court for the District of Columbia.
(2) The Supreme Court of the United States shall have no appellate jurisdiction, on the basis that an alleged criminal act was within the conclusive or preclusive constitutional authority of a President or Vice President or on the basis that an alleged criminal act was related to the official duties of a President or Vice President, to (or direct another court of the United States to)—
(A) dismiss an indictment or any other charging instrument;
(B) grant acquittal or dismiss or otherwise terminate a criminal proceeding;
(C) halt, suspend, disband, or otherwise impede the functions of any grand jury;
(D) grant a motion to suppress or bar evidence or testimony, or otherwise exclude information from a criminal proceeding;
(E) grant a writ of habeas corpus, a writ of coram nobis, a motion to set aside a verdict or judgment, or any other form of post-conviction or collateral relief;
(F) overturn a conviction;
(G) declare a criminal proceeding unconstitutional; or
(H) enjoin or restrain the enforcement or application of a law.
(b) Constitutional Challenges.—Notwithstanding any other provision of law, for any civil action brought for declaratory, injunctive, or other relief to adjudge the constitutionality, whether facially or as-applied, of any provision of this Act (including this section), or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality, the following rules shall apply:
(1) A plaintiff may bring a civil action under this subsection, and there shall be no other cause of action available.
(2) Only a President, former President, Vice President, or former Vice President shall have standing to bring a civil action under this subsection.
(3) A facial challenge to the constitutionality of any provision of this Act (including this section) may only be brought not later than 180 days after the date of enactment of this Act. An as-applied challenge to the constitutionality of the enforcement or application of any provision of this Act (including this section) may only be brought not later than 90 days after the date of such enforcement or application.
(4) A court of the United States shall presume that a provision of this Act (including this section) or the enforcement or application of any such provision is constitutional unless it is demonstrated by clear and convincing evidence that such provision or its enforcement or application is unconstitutional.
(5) The civil action shall be filed in the United States District Court for the District of Columbia, which shall have exclusive jurisdiction of a civil action under this subsection. An appeal may be taken from the district court to the United States Court of Appeals for the District of Columbia Circuit, which shall have exclusive jurisdiction to hear an appeal in a civil action under this subsection.
(6) In a civil action under this subsection, a decision of the United States Court of Appeals for the District of Columbia Circuit shall be final and not appealable to the Supreme Court of the United States.
(7) The Supreme Court of the United States shall have no appellate jurisdiction to declare any provision of this Act (including this section) unconstitutional or to bar or restrain the enforcement or application of any provision of this Act (including this section) on the ground of its unconstitutionality.
(c) Clarifying Scope Of Jurisdiction.—
(1) IN GENERAL.—If an action at the time of its commencement is not subject to subsection (a) or (b), but an amendment, counterclaim, cross-claim, affirmative defense, or any other pleading or motion is filed such that the action would be subject to subsection (a) or (b), the action shall thereafter be conducted pursuant to subsection (a) or (b), as applicable.
(2) STATE COURTS.—An action subject to subsection (a) or (b) may not be heard in any State court.
(3) SUA SPONTE RELIEF.—No court may issue relief sua sponte on the ground that a provision of this Act (including this section), or its enforcement or application, is unconstitutional.
SEC. 5. SEVERABILITY.
If any provision of this Act, or application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, and the application of the provisions of this Act to any person or circumstance shall not be affected thereby.
To the great surprise of nearly everyone, President Trump signs the NKA into law. Two days later, it becomes apparent why. Trump signs a declaration pursuant to the 25th Amendment temporarily assigning the power of the Presidency to Vice President Vance for the two hours that Trump will be sedated while undergoing dental surgery. During those two hours, Acting President Vance signs an unconditional pardon for “any and all actual or alleged criminal acts performed by Donald Trump from the moment of his birth through the present.” Trump then awakens and submits a written declaration that he has resumed the presidency.
Later that same day, Attorney General Bondi announces an indictment of former President Obama under 18 U.S.C. § 1119, which defines it as murder if “[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country . . . .” The indictment is filed in Federal District Court for the District of Columbia. It describes then-President Obama’s ordering of the 2011 killing of U.S. citizen Anwar al-Awlaki via a drone strike in Yemen. The indictment alleges that then-President Obama’s authorization of the killing of al-Awlaki was “willful, deliberate, malicious, and premeditated,” and thus first-degree murder, for which 18 U.S.C. § 1111 prescribes a penalty of life imprisonment or death.
You are one of the lawyers on the legal team representing former President Obama. The team leader has asked you to write an objective memo addressing the following questions:
Question 2 (30 percent)
If the issue is resolved against former President Obama in the lower courts, will the Supreme Court be able to exercise jurisdiction to declare that he has immunity as a former president?
Question 3 (30 percent)
Regardless of whether the issue is finally resolved by the Supreme Court or a lower court, is former President Obama entitled to immunity for the charged act?