Con Law Exam 2013: Obamacare Meets Must-Carry

By Mike Dorf

In keeping with my recent tradition, I'm posting my latest constitutional law exam here.  As always, I will not grade readers' answers. I'm omitting the instructions, other than to say that it was an eight-hour, open-book, take-home exam.  (Note that the exam question refers to a mass shooting.  It was administered early last week, before the Newtown anniversary and before the latest school shooting in Colorado.  It was/is not intended to make light of such events, although it was/is intended to ridicule the policy reaction in some quarters.)

The following facts pertain to all questions:

            In late December 2013, a virus infects the computers that operate the federal and state health insurance exchanges, as well as the computers of the companies that offer insurance on these exchanges. As a consequence, all records of persons who enrolled for health insurance on the exchanges are lost and the centerpiece of the Affordable Care Act is widely regarded as a disaster. At a press conference in October 2014, White House spokesman Jay Carney suggests that the computer virus was maliciously created and introduced by Republican "dirty tricksters", but by then it is too late to repair the political damage. Republican candidates win the 2014 midterm Congressional elections in a landslide, dramatically increasing their margin in the House of Representatives and winning all but one of the Senate races, including races in traditionally strongly Democratic states. Following the election, four moderate Democratic Senators switch to the Republican Party. The result is that Republicans hold over three quarters of the seats in the House and over two-thirds of the seats in the Senate.

            Then, in February 2015, a mass shooting in a suburban shopping mall leads to the deaths of twenty-seven people, including eight children.  The act is perpetrated by Steven Pepper, a former Sergeant in the U.S. Army who was dishonorably discharged in 2011 for assaulting his commanding officer.  Videos on the news and YouTube show several unarmed security guards valiantly attempting to apprehend Pepper, who mercilessly guns them down. Just before armed police arrive at the scene, Pepper shoots and kills himself.

            The shooting leads to polarized political reactions.  Democrats call for tighter gun control measures, while Republicans blame the shooting on the fact that the security guards and the general public did not carry firearms. Republicans win the vote in Congress and in March 2015, they pass a bill--the Securing America From Enemies at Home Act--aka the SAFEatHome Act. President Obama vetoes the bill, but Congress overrides his veto and SAFEatHome becomes law.   In relevant part it provides:

Sec. 101.  This Act is enacted pursuant to any or all of the following powers of Congress: to lay and collect taxes; to regulate interstate commerce; to arm the Militia; to enforce the Fourteenth Amendment; to make laws that are necessary and proper to carrying out its enumerated powers; any other power or powers that may supply the authority for the enactment of this law.

Sec. 102.  (a) Unless they have a good excuse, all male U.S. citizens 21 years of age or over who reside in the United States and who have not been convicted of a felony and who are not currently incarcerated must at all times have within their possession and carry with them in public a fully loaded assault rifle in good working order. (b) Notwithstanding any other provision of federal, state or local law, any female U.S. citizen 21 years of age or over who resides in the United States and has not been convicted of a felony and who is not currently incarcerated may at any time have within her possession and carry with her in public a fully loaded assault rifle in good working order.

Sec. 103.  Within sixty days of the enactment of this Act, the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") shall promulgate rules which shall have the force of law specifying what constitutes a good excuse and what weapons qualify as assault rifles.

Sec. 104.  Failure to comply with this Act shall be punishable by a tax of up to one year in prison, or a tax of up to $10,000, or both.

            Following the enactment of SAFEatHome, the Attorney General and President Obama jointly announce that ATF will not be promulgating regulations implementing SAFEatHome because, in the words of their statement, "it is blatantly unconstitutional."

            It is now June 2015 and you have secured a job as a summer associate for the Dallas, Texas law firm of Smidt & Westin. The firm has been retained by eccentric billionaire Louis "Tex" Richman, who wishes to challenge ATF's failure to promulgate rules interpreting the SAFEatHome Act.  Richman owns a Soviet-era AK-47 in good working order and says he is uncertain whether it counts as an "assault rifle" or whether instead, he must purchase and carry an American-made weapon such as the M-16.  In the event that the AK-47 does not qualify under the Act, he wants to know whether the fact that he is 88 years old and suffers from failing eyesight amount to a "good excuse." Richman would also like the firm's view about whether the SAFEatHome Act is constitutional because he is upset that the President has thus far refused to implement it.

            Write the analysis and conclusion portions of a memo to partner Betty Smidt addressing the following questions:

1) If Richman sues ATF or an executive official in federal court seeking an order to compel ATF to promulgate rules, would his case be justiciable?

2) Did Congress have the affirmative power to enact the SAFEatHome Act?

3) Does the SAFEatHome Act unconstitutionally delegate power to ATF?

4) Does the SAFEatHome Act violate the Second Amendment?

5) Does the SAFEatHome Act violate the Fifth Amendment?

6) Do the foregoing five questions encompass all of the most substantial constitutional objections that might be raised to the SAFEatHomeAct and/or the President's decision not to promulgate rules? If not, identify other substantial objection(s) and discuss.