Constitutional Law Exam 2021-- Featuring COVID, RLUIPA, Anti-Swiss Animus, and Executive Privilege

 by Michael C. Dorf

Per my custom, I paste below the exam I administered to my constitutional law students last month. It's less humorous than some of my past exams, but I was pleased with it anyway. Question 1 was worth 40% and each of Questions 2 and 3 was worth 30%. Students had a 2500-word limit for this open-book take-home and eight hours to complete it. Interested readers can take less (or more!) time if they so choose.

Question 1

The State of Myrontana has among the lowest COVID-19 vaccination rates in the country. As a consequence, its hospitals have been operating above capacity and have recently had to use “crisis standards of care,” putting all patients at increased risk. In response, at its most recent monthly meeting, the City Council of Hughes, in central Myrontana, adopted a vaccine mandate. In relevant part it provides: “Until further notice, no building in an area that is zoned commercial may be open to more than 100 people at a time, unless all persons admitted to that building are fully vaccinated against COVID-19.” Buildings in violation are subject to closure for a month and the persons responsible may be fined up to $100 per unvaccinated person admitted per occasion.

The New Dutch Church, an offshoot of the Dutch Reformed Church, was established in Hughes in 1974, where its building can hold 400 people. Prior to the new mandate, between 200 and 300 congregants were attending the Sunday morning worship service each week. The church’s pastor, Rev. Stephen Munson, has not been vaccinated against COVID-19 and preaches to his congregation that vaccination shows disrespect for Divine providence. Fewer than forty percent of the attendees at the New Dutch Church are vaccinated against COVID-19. Immediately following the Hughes City Council’s imposition of the vaccine mandate, Rev. Munson and the New Dutch Church sued the Hughes City Council and the District Attorney in federal court, seeking to enjoin the enforcement of the vaccine mandate against Munson and the church. The complaint alleges:

(a) The application of the Hughes zoning code to enforce the vaccine mandate violates the Religious Land Use and Institutionalized Persons Act (RLUIPA), as it “appli[es]” “a zoning . . . law,” 42 U.S.C. § 2000cc-5, “in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution” without satisfying the compelling interest test. 42 U.S.C. § 2000cc.

(b) The application of the Hughes zoning code to the New Dutch Church discriminates on the basis of religion, in light of the fact that buildings outside of the commercially zoned area are not subject to the vaccine mandate. (There is one building in Hughes outside the commercially zoned area with a capacity of over 100 people, the Hughes College Huskies outdoor football stadium, which has seating for 3,200 spectators.)

(c) The vaccine mandate violates the substantive due process rights of Rev. Munson.

In their answer, the defendants argue that constitutional claims (b) and (c) are without merit. With respect to (a), the defendants contend that, as applied, the land use provision of RLUIPA is unconstitutional as beyond the power of Congress. RLUIPA’s provision for federally funded entities, 42 U.S.C. § 2000cc(a)(2)(A), does not apply to the New Dutch Church, because it does not receive federal funds. The defendants contend further that Hughes does not have “in place formal or informal procedures or practices that permit the government to make individualized assessments” with respect to the vaccine mandate, so that 42 U.S.C. § 2000cc(a)(2)(C) also does not apply. The defendants acknowledge the plaintiffs’ reliance on 42 U.S.C. § 2000cc(a)(2)(B), which would entitle the plaintiffs to the application of the compelling interest test if “the substantial burden” of complying with the vaccine mandate “affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability.” However, the defendants argue that the application of RLUIPA on that basis would exceed the scope of congressional power.

Evaluate the constitutional issues raised by claims (a), (b), (c), as well as the defendants’ best responses. Assume for each part that the plaintiffs have standing and that the issues are otherwise justiciable.

Question 2

Following a devastating earthquake in Switzerland, over two hundred orphaned Swiss children and teenagers were adopted by U.S. families. As minor adoptees of U.S. citizen parents, they were quickly granted U.S. citizenship. The adoptees are concentrated in California, including ten Swiss teenagers who were adopted by five sets of parents in Truckee, California, where they enrolled in the local public high school, Truckee High.

Given its proximity to Lake Tahoe, Truckee High has a competitive alpine ski racing team. People who grow up in Switzerland typically learn downhill skiing at an early age and often develop into excellent ski racers. The Truckee Swiss adoptees are no different. The three Swiss boys and four Swiss girls who try out for the Truckee High alpine ski team post race times in downhill, slalom, and giant slalom that are significantly faster than the U.S.-born attendees of Truckee. Consequently, in the school year following the arrival of the Swiss adoptees, most of the previous year’s high school ski team members are cut. In response, their parents come to a school board meeting, where they angrily demand that the five-member board “do something to protect our kids against unfair competition.” The board—one of whose members is Amy Jones, a parent of one of the U.S.-born teens who was cut from the team—votes to change how ski racers will be chosen. Commencing immediately, the Truckee High alpine ski team will not cut anyone who can race faster than the state maximum qualifying time for an event. On race days, a lottery will be held to determine which team members will represent the school in each event. The board vote for the new system is 3-2, with Jones in the majority.

One of the Swiss adoptees is Marta Robinson, who posted the fastest time in all three events during tryouts. Under the new lottery system, Marta will likely be precluded from competing in roughly half to two-thirds of the races in the upcoming season. Her adoptive parents contact the law firm of Rachlinski & Whelan. They tell the partner who meets with them that they believe their daughter is suffering unconstitutional discrimination. In addition to reciting the background information contained above, they note that the parents who spoke at the school board meeting and Amy Jones are part of a Facebook group called American Sports For American Kids (ASFAK). Posts on ASFAK complain about “the foreigners,” “lederhosen-wearing chocolate munchers,” and “Swisscheeseholes” “stealing our kids’ slots” and “cheating.” You are a junior associate at Rachlinski & Whelan. The partner handling the case asks for a memo analyzing the strength of the equal protection lawsuit that could be brought against the school district by your client. Omit the facts portion of the memo in your answer.

Question 3

As you know, a House of Representatives select committee charged with investigating the January 6, 2021 attack on the United States Capitol has issued subpoenas for records and testimony from various actors, including the Archivist of the United States (as custodian of executive records), former officials in the Trump administration, and informal advisors to the President. Many of the former officials and advisors have refused to comply, citing former President Trump’s attempted invocation of executive privilege. As we discussed in class, on November 9, 2021, Federal District Judge Tanya Chutkan rejected the former president’s motion for an injunction against the Archivist, in light of President Biden’s failure to support the motion. Judge Chutkan’s opinion relied in substantial part on the reasoning of a case we did not read for class, Nixon v. Administrator, Gen’l Serv.      

Judge Chutkan’s ruling is now on appeal. That case or the contempt-of-Congress prosecution of Steve Bannon could reach the Supreme Court soon. Assume that you are a law clerk to Justice Neil Gorsuch, who wants to think through these issues now so he will be prepared if a case comes to SCOTUS in an emergency posture. Recall that Justice Gorsuch joined the majority opinion and did not write separately in Trump v. Mazars, while he joined the concurrence in the judgment of Justice Brett Kavanaugh in Trump v. Vance.

Assume further that Justice Gorsuch tells you he is not sure what the precise relevance of Nixon v. Administrator, Gen’l Serv. should be to the dispute over the Jan. 6 subpoenas because, as Justice Gorsuch tells you in confidence “that ruling is darned confusing.” In particular, Justice Gorsuch notes that the majority in Nixon v. Administrator, Gen’l Serv. said that executive “privilege survives [past] the [end of an] individual President’s tenure.” In the very next paragraph, however, the majority “presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” Given this unclear guidance, Justice Gorsuch asks you to analyze the potential case without regard to Nixon v. Administrator, Gen’l Serv. In particular, he asks you to help him think through two issues based on the “other” Nixon case—United States v. Nixon—and “first principles of separation of powers and checks and balances.”

The two issues are:

(a) When, if ever, should executive privilege be available to cover communications between the president and informal advisors who hold no official government position at the time of the communication?

(b) When a former president asserts executive privilege in response to a congressional subpoena but the incumbent president does not support the privilege assertion, how much respective weight should a court give to the assertion by the former president and the failure to support it by the incumbent?

Justice Gorsuch asks you to write a memo addressing these two questions with the specific dispute involving former President Trump and his advisors in mind but also with an eye towards potential disputes involving future presidents and ex-presidents.