An Ebola-Based Constitutional Law Exam

by Michael Dorf

It's the holiday season and that means I'm too burnt out, busy grading exams, and visiting family to write a new blog post. Thus, following my usual custom, I present the constitutional law exam I gave my students. For them, it was an 8-hour open-book take-home but you can take as much time as you like. Readers who wish to post answers are welcome to do so, but I won't grade those. Enjoy!


Question 1 of 1:

After an outbreak of Ebola in El Salvador, officials with the Centers for Disease Control grow fearful that the disease could spread to Mexico and from there into the United States. In response, President Obama quickly negotiates a treaty with Mexico and Canada: the North American Ebola Free Zone Treaty (NAEFZT). The Senate ratifies it, as do the Mexican and Canadian governments. The Treaty obligates each country to “immediately adopt and implement effective Ebola border screening and to vaccinate 100% of the population against Ebola.” As of the date of ratification, there is no vaccine that has proven effective against the Ebola virus, although several experimental vaccines have shown promise.

Following ratification of NAEFZT, the Department of Homeland Security establishes 21-day quarantine facilities at land, sea, and air entry points into the country. In addition, Congress enacts the North American Ebola Free Zone Treaty Implementation Act (NAEFZTIA). As relevant here, NAEFZTIA contains the following provisions:
I. Congress has the authority to enact this Act under the Commerce Clause, the Borrowing Clause, the Spending Clause, the Taxing Clause, the Treaty Clause, the Necessary & Proper Clause, and/or any other powers that may be relevant. 
II. Within ten days of the enactment of this Act, the Secretary of Health and Human Services (HHS), in consultation with the Chairman and Ranking Minority Member of the Senate Committee on Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies, shall designate an “Ebola Caesar,” who shall serve for a period of five years, during which time he or she may not be removed by anyone other than the Secretary, and then only on grounds of death, complete incapacity, or gross incompetence. Notwithstanding any other provision of law, the Ebola Caesar shall have unreviewable authority to designate a vaccine as safe and effective against the Ebola virus. The Ebola Caesar shall make that designation based only on scientific evidence. [Footnote: In October 2014, President Obama designated Ronald Klain as the “Ebola Response Coordinator,” unofficially known as the “Ebola Czar.” The new position created by NAEFZTIA is officially to be called “Ebola Caesar” and, as described in the text, has responsibilities different from those that were given to Klain.] 
III. Once the Ebola Caesar has designated a vaccine as safe and effective, the President shall issue an executive order designed to ensure that 100% of the U.S. population is vaccinated. 
IV. Notwithstanding any other provision of law, the President is hereby empowered to spend up to $1 trillion to implement this Act and the Secretary of the Treasury is hereby empowered to issue debt instruments (bonds) to make up any shortfall between revenues in the Treasury and expenditures needed to carry out this Act and other authorized spending. The President may also adjust tax rates to ensure compliance with his executive order. 
V. Neither the Religious Freedom Restoration Act nor the American Indian Religious Freedom Act shall apply to any obligations imposed under the authority delegated by this Act.
Three days after President Obama signs NAEFZTIA, Sylvia Burwell, the Secretary of HHS, secures written agreement from the Chairman and Ranking Member of the Senate subcommittee specified in the Act, and thus appoints Dr. Stephen Calderwood as the Ebola Caesar. Two weeks later, Dr. Calderwood designates EBOLEX, a vaccine produced by the BIGPHARMA corporation, as safe and effective. His official statement recognizes “that EBOLEX has not been subject to the full procedural requirements for approval of new drugs by the Food & Drug Administration, but NAEFZTIA does not require such procedures to address the current public health emergency. Moreover, I am assured of the safety of EBOLEX by the fact that it is derived entirely from broccoli, a vegetable that humans have been safely consuming for centuries.”

After a day-long price negotiation with representatives of BIGPHARMA, President Obama issues an Executive Order. As relevant here, it provides:

1. $32 billion are hereby allocated to purchase 320 million doses of EBOLEX at $100/dose. 
2. Over the next seven days, the National Guard shall distribute doses of EBOLEX on a per-population basis to public elementary schools throughout the country. 
3. Upon receipt of its doses of EBOLEX, the principal of every public elementary school in the country shall give notice to the local population that every person residing in the district—regardless of whether any household members attend that or any other public school—shall report to the school within three days to be vaccinated by the school nurse or other staff. 
4. Public school principals and other school officials shall be compensated for their time at the rate of $40/hour. Funds are hereby allocated to pay these costs. If any school principal in a state fails to carry out the duties specified in this order, that state shall lose all federal funding for education for that school year. 
5. Except as provided in part 6 below, any person present in the United States who fails to report and submit for vaccination shall be liable for an infection risk tax of the greater of $50 per day or one percent of her prior year’s annual income per day for each day he or she remains unvaccinated. 
6. Any person who sincerely believes that the Bible forbids him or her from being vaccinated may decline to be vaccinated without penalty, so long as he or she consumes one ounce of broccoli per 20 pounds of body weight per day for a period of thirty days.
You are an associate in the law firm of Rosencrantz, Guildenstern & Stoppard. Senior partner Elizabeth Guildenstern asks for your help with a new case. The client is her second cousin Henry Bolingbroke, who is the principal of Waihee Elementary School on the island of Maui, Hawaii. Waihee Elementary is scheduled to receive its shipment of EBOLEX tomorrow, but already Bolingbroke has received an inquiry from a resident of the district, Bill Kahananui, who says that he does not want to be vaccinated because he has trypanophobia, a fear of injections. Kahananui finds the taste of broccoli unpleasant but much more tolerable than a needle. Kahananui was born and raised Christian but in 1977, when he was 22 years old, he abandoned Christianity in favor of traditional Hawaiian religion, which is polytheist and animist.

Meanwhile, Bolingbroke wants to do his legal duty but he does not understand why Ebola vaccines must be given to Hawaiians, in light of the distance from the mainland. In addition, he notes that a very recent article in the New England Journal of Medicine indicates that men with a Y-chromosome from native Hawaiian stock are naturally immune to Ebola. Mr. Kahananui is one-half native Hawaiian from his father’s side of the family and so he has the protective Y-chromosome.

Bolingbroke asks Guildenstern for an assessment of his legal obligations. She in turn gives you the following assignment:  Write the analysis portion of a memorandum identifying and assessing the constitutional issues raised by the application of NAEFZTIA and the Executive Order to Kahananui, Bolingbroke, and the State of Hawaii.