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April 24, 2004

ConLaw Practice Exam

Since I'm supposed to be learning all about Constitutional Law for a final, um, in a week or so, I'm a little concerned that I don't have more complete responses to the Constitutional quandaries in the headlines. Therefore, as a public service to any law student studying for ConLaw, I present two real-life ConLaw practice exam questions:

Question One:
Health and Human Services (HHS), an agency under the executive branch, is refusing to release information to Congress (and the press, but that's a different story). What arguments can HHS make to support its claim that it doesn't have to comply with a Congressional request for information?

Question Two:
The U.S. is currently holding more than 600 foreign nationals at a military base in Cuba as suspected terrorists. The Supreme Court recently considered whether these prisoners should be accorded any due process rights, or if they should be denied those rights because the executive says they are "enemy combatants." What arguments can the executive make to support its position that U.S. courts have no jurisdiction over these prisoners, that these prisoners have no due process rights, and that the executive has complete discretion to decide these matters?

In a related question, Yaser Hamdi, one of the Guantanamo prisoners, turned out to be a U.S. citizen. Does that change the executive's power to detain Hamdi? Does the executive have unreviewable authority to deprive a U.S. citizen of his Constitutional rights? What arguments can the executive make in its favor? What are the flaws in those arguments? (A bit more on these questions here.)

__________

How would you answer these questions on a ConLaw final? They say practice exams are a great way to study. Feel free to practice in the comments! ;-) Click "more" for my very superficial/general thoughts on these questions.

General Thoughts on Question 1:
Can HHS withhold information from Congress under executive privilege? If so, does the executive's need for confidentiality outweigh the public's need to know this information? The answer to that probably depends on whether you'd like to see a second Bush term. If you'd like to see Bush reelected, then the public doesn't really need to know how duplicitous the executive was here. If you'd prefer to see Bush leave office, then the public's need to know this information is quite urgent.

This issue might also raise other, more difficult Constitutional law questions, such as: What happens if an executive agency lies to Congress about the cost of a program, then Congress appropriates money for that program, and then the executive says, oops, we need more money? I mean, I guess there are no Rule 11 sanctions to impose on the executive branch, but really, there should be. I'm guessing the only "sanctions" are accountability to the public—if people are angry enough about the executive's duplicity, they'll indicate their anger at the ballot box. Let's hope. Of course, if voters can't get the information, or if the information remains clouded in enough controversy that voters can convince themselves the executive may not, in fact, have lied here, then that ballot box accountability becomes a bit dubious, doesn't it?

General thoughts on question 2:
At a basic level the enemy combatant cases present questions about the extent of the executive's powers under the "commander in chief" (Art. II, § 2) and possibly "vestiture" (Art. II, § 1) clauses. But then, these seem to conflict a bit with the executive's responsibilities to "take care that the laws be faithfully executed" (Art. II, § 4). I mean, especially in Hamdi's case, since he's a U.S. citizen, we do have laws about due process that the executive has an obligation to uphold, right?

Posted April 24, 2004 09:31 AM | law general law school


Nice work, AI. We are actually spending the last class next week talking about the Condaleeza Rice testimony in the 9/11 hearings as well as the Guantanamo Bay Due Process issues.

I'm glad our Prof is doing some application to the present before the final. Our final is a theoretical one (as opposed to IRAC), interestingly enough. I may try your practice exam tomorrow.

Posted by: Cinnamon at April 24, 2004 01:10 PM

re: q1 - I'd go for a separation of powers argument, possibly combined with a federalist thing. For this... hmm. Morrison, maybe?

re: q2 - read the 2nd Circuit opinion on Padilla. They have lots of good source material for answering the second question. Also look at the nature of the War Powers of the president - has a war been declared here? No. I think Dellums and Ange would be useful here, too.

Posted by: Katherine at April 24, 2004 03:30 PM

(1) Make a separation of powers argument, focusing on executive privilege. Inherent in Congress's Article I legislative power is the power to investigate. See United States v. Watkins. But, that power runs up against the executive's constitutionally-based privilege, which protects communications made in the process of shaping policies and making decisions. See United States v. Nixon. HHS should argue that (1) if it's forced to release this information, its (and, derivatively, the President's) ability to perform its constitutional functions will be impaired by the chilling of future deliberations that will occur when executive officials realize their deliberative discussions might be scrutinized by a Congress that's all too eager to embarrass the executive, and (2) Congress's need for the information does not outweigh that danger.

Realistically, a dispute such as this would never make it to the courts. The political process--egged on by the press's absolute hatred of assertions of executive privilege--generally leads to acquiesence by the executive (as we saw w/Condoleeza Rice testifying) or to a resolution through inter-branch negotiations.

Thanks for the questions...good practice for my finals next week.

Posted by: JC at April 24, 2004 05:48 PM

You guys are way ahead of me here, but I'll come back to this in a couple of days when I laser-beam on ConLaw. Right now, here's another link to a different (but somewhat related) real-time ConLaw question: Did Bush have a Constitutional or statutory obligation to tell Congress about the $700 million he initially spent on the Iraq war? One analysis is here.

Posted by: ambimb at April 25, 2004 05:02 PM

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