Con Law Exam 2018: Trump in Space (and More)

by Michael C. Dorf

Once again, I am posting an exam. This one was administered to my first-year constitutional law students on Tuesday. They had eight hours and a 2,500 word limit. Interested readers should feel free to spend less (or more!) time and fewer (or more!) words providing answers in the comments. I won't grade readers' answers, as I'm too busy grading the actual exams. Enjoy!

Question 1

NASA scientists announce in December 2018 that they have detected and definitively translated a signal from a region in space approximately 40 light-years from our solar system. The translation is:

People of Earth, beware. Your civilization is in grave danger from the Jet People of the Planet Weezer. The Jet People have already committed genocide on our home planet. We are the last survivors of a great civilization of Shark People. We do not expect to survive the next attack. You must prepare to fight the Jet invaders. They are ruthless, but they can be defeated by high-energy beams containing concentrated Krypton. Tragically, our scientists discovered the Jet People’s vulnerability to Krypton too late to save ourselves. With their high-speed interstellar fleet, the Jet People will reach Earth in a matter of decades. Prepare yourselves if you hope to survive.
Space scientists from Russia, China, Japan, and the European Union confirm both the authenticity and the content of the signal. Recognizing that the signal from the Shark People was sent forty years ago, nearly all world leaders quickly conclude that urgent action is needed. However, President Trump is unpersuaded. He tweets:

Members of the House and Senate of both parties attempt to explain to Trump that NASA translated the signal using the terms “Sharks” and “Jets” simply as an homage to West Side Story, but that the “Shark People” do not in fact resemble or bear any relation to the sharks that swim in Earth’s oceans. Trump initially resists their arguments. However, he eventually relents, announcing his decision in another tweet:

Congressional leaders quickly get to work to produce what is tentatively titled the Defending America From Aliens From Everywhere Act (DAFAFEA). Its key provisions are as follows:
Section 1: Congress hereby appropriates $18 billion for construction of a beautiful security wall along the US border with Mexico. 
Section 2: A Department of the Space Force is hereby created. Space Force shall be a new branch of the armed forces, co-equal with the existing branches (the Army, Navy, Air Force, Marines, and Coast Guard). 
Section 3: Congress hereby appropriates $400 billion to the Space Force to be used to rapidly develop, deploy, and utilize Krypton-based weapons against the Jet People. 
Section 4: Until the threat from the Jet People has been neutralized, the Space Force shall be under the sole command of an Independent Head Admiral to be appointed by the Supreme Court of the United States. 
Section 5: The Independent Head Admiral of Space Force shall be removable by the Secretary of Defense only upon a showing of good cause. 
Section 6: The Independent Head Admiral of Space Force may exercise his military judgment to coordinate the activities of Space Force with forces of other countries.  
During debate in the Senate over DAFAFEA, Senator Tom Cotton says “I worry that we might not have the power to create a Space Force. Certainly James Madison didn’t intend for a defense against extraterrestrials.” In response, Senator Bernie Sanders says that “if there are any doubts, we should do a treaty with the Russians and then we can pass DAFAFEA as a statute implementing the treaty.” This idea is popular. Soon-to-be-departing Congressman Dana Rohrabacher quickly negotiates a bare-bones treaty with the Russian Federation, in which each country pledges “to take all steps necessary to provide for a military defense of the Earth against extraterrestrial invaders.” President Trump tweets his approval of the proposed treaty:

DAFAFEA is renamed the US-Russia Extraterrestrial Defense Treaty Implementation Act (USREDTIA), but otherwise remains the same. The Senate unanimously agrees to the treaty. Minutes later, the House and then the Senate pass USREDTIA. President Trump signs it. Hours later, the Supreme Court designates Norton “Norty” Schwartz, a retired Air Force general, as Independent Head Admiral of Space Force.

You are working as a law clerk in the Office of Legal Counsel. Your boss tells you in confidence that he is worried that President Trump will try to fire Schwartz. Apparently First Lady Melania Trump has been reading Schwartz’s book Journey: Memoirs of an Air Force Chief of Staff. She left it dog-eared in the White House residence, where the president opened it to a page in which General Schwartz praises former First Lady Michelle Obama’s concern for the troops. Reading that passage enraged the current president, in light of Ms. Obama’s own recent book’s passages that criticize Trump for his having doubted President Obama’s US citizenship.

Write the analysis and conclusion portions of a memo addressing the following questions:

a) Did Congress have the affirmative power to create Space Force?

b) Was the appointment of Schwartz pursuant to Section 4 of USREDTIA valid?

c) Can Trump fire Schwartz notwithstanding Section 5 of USREDTIA?

Question 2

Hughes City, Hughes, has long had a shortage of affordable housing, exacerbated by an influx of high earners due to the recent boom in the Hughes high-tech sector. On December 8, 2018, an earthquake struck Hughes. Fortunately, no one was killed or even seriously injured, but the Schwab Homes—a 1950s-era public housing complex—suffered severe structural damage that led to their evacuation and temporary closure. Approximately 8,000 people were displaced pending repairs, which are expected to be completed by mid-February 2019.

Within a day, some of the Schwab Home residents were able to find shelter with relatives both in and outside of Hughes, but many could not. The city and various nonprofit organizations quickly attempted to find them lodging in hotels, motels, B&Bs, and Airbnb’s, but due to the busy holiday season, few rooms were available. As a result, Hughes City, with homeless shelters full to capacity, needed to find emergency housing. About two thousand people were accommodated on cots set up in houses of worship and public and private schools. Still, that was not enough. Mayor Barbara Rachlinski appealed to “the kind-hearted citizens of Hughes City” to volunteer to “open their homes to their neighbors.” Some did. Still the full need was not met. Approximately 700 adults and 200 minors (86% of whom were non-white, despite the fact that the overall population of Hughes City is 53% white) remained without housing on the morning of December 10. With a winter storm coming, the city needed to provide shelter for them. The mayor proposed and by 9:30 am the city council approved the Good Neighbor Ordinance (“GNO”). It provides:

Section 1: All persons owning or renting for at least the next six months a dwelling with at least 400 square feet not currently being used for sleeping, food preparation, or a bathroom shall, by 3 pm today, notify the City that they are able to serve as good neighbors, or else pay a vacancy tax of $1,000 per day per room for each day such notice is not provided. 
Section 2: If the City learns of the availability of more than enough rooms to accommodate the Schwab evacuees, then a lottery shall be held to determine which rooms shall be used. 
Section 3: Any person whose spare room is selected for the Good Neighbor program shall receive just compensation in the amount of $0.35 per square foot per night. 
Section 4: If, after 90 days, repairs are not completed and alternative housing is not available for any Schwab evacuee occupying Good Neighbor housing, a second lottery shall be conducted and the remaining evacuees will be relocated.
63-year-old Karla Billingsworth lives alone in a two-bedroom apartment in the newly trendy Train Town neighborhood of Hughes City. She has a yearly lease that last renewed on September 1, and she pays $2,700 per month in rent. She sleeps in one bedroom and uses the other as a home office, where she has installed four state-of-the-art high-speed computers that she uses to make a living by “mining” bitcoins and other crypto-currencies. Billingsworth also happens to be a lawyer by training. Upon learning of the GNO (as a result of ubiquitous publicity) at 10 am on December 10, she sues Hughes City, the mayor, and the City Council in Federal District Court, seeking an immediate temporary restraining order on the ground that the GNO is unconstitutional.

Billingsworth raises objections under the First, Second, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, “plus any penumbras or emanations from those or any other provisions of the Constitution that may be relevant.” Her complaint sets forth the facts as stated above and also includes an affidavit that provides: “I cannot afford to pay the tax. I am a very private person. I do not want a person of any race, religion, sex, gender identity, sexual orientation, or age living in my home office, and I am especially unhappy about the likelihood of being assigned a border or boarders whose lifestyles will likely clash with mine.”

Billingsworth’s motion seeks to enjoin the GNO “on its face and/or as applied to my circumstances.” The Prayer for Relief also states: “In the event that the court denies full injunctive relief, in the alternative, Plaintiff asks that the City be permitted to assign her no boarder other than a straight white Protestant Christian cisgender female over the age of 30, as sharing her home with any other kind of roommate would violate Plaintiff’s religious convictions.”

Assume that Billingsworth makes the best arguments available. What is the likelihood that she will succeed in obtaining relief?