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8.  Congress has concluded that cigarette smoking raises the nation’s annual health-care budget 15% above what it would otherwise be. Congress has therefore enacted a statute that requires each state to: (1) place a tax of at least 10% on the sale of cigarettes (in addition to existing federal cigarette taxes); (2) compile a registry of every premises in the state where cigarettes are sold, and audit those premises quarterly to make sure they’re collecting the tax; (3) modify its health-care financing scheme so that the state does not pay any hospital or doctor for the costs of treating any condition found to be caused by cigarette smoking; and (4) modify its tort law so as to treat cigarettes as a “defective product” for which strict liability is allowed under state tort law. Congress does not allocate any funds for the carrying out of these objectives. It provides that if a state is found not to be in compliance one year after enactment of the act, the federal district courts for that state shall have authority to direct the legislature and agencies of the state to comply, and to hold state officials in contempt if they do not comply.

(A) If you are given the job of arguing on behalf of a state that this provision is an unconstitutional infringement of your state’s sovereignty, what constitutional provision should you point to? _________________

(B) Will your argument succeed?  _________________

(C) If you are charged with improving the likelihood that the federal scheme will pass muster, what fundamental change will you urge to be made in that scheme?  _________________

Chapter 5


10.  Congress, after concluding that the states have lagged behind in educating school children to be tolerant towards homosexuals, enacts a program providing a small subsidy to any public elementary school that conducts a program teaching a better understanding of, and tolerance of, gay people.

(A) Putting aside the Commerce power, what constitutional provision best supplies constitutional authority for this statute?  _________________

(B) A parent whose child is about to receive such instruction sues to have the provision found unconstitutional, on the grounds that it encourages homosexuality and thus detracts from the general welfare of the nation. Assuming that the federal court hearing the case concludes that the measure will probably make the nation worse off than it was before, will this constitutional attack on the statute succeed? _________________

11.  Congress, alarmed about the dramatic rise in teenage pregnancies, passes the Underage Procreation Act of 2012. That Act requires any person under the age of 17 to obtain a federal permit before becoming pregnant. The permit is granted to any woman who shows that she has received one hour of counselling about the dangers of teen pregnancy from a state-licensed social worker. Violators are to be fined. A 16-year-old woman who wishes to become pregnant files suit to attack the statute’s constitutionality on the grounds that it is beyond Congress’ enumerated powers. The federal government defends the statute on the grounds that it is a proper exercise of Congress’ power to regulate for the “general welfare.” Will the plaintiff’s attack on the statute succeed? (Ignore any issues relating to a woman’s constitutional right to privacy or right to become pregnant. Assume that the Court decides that nothing in the activity being regulated affects interstate commerce.)  _________________

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