Excellent Essay Example 2 (July 2017 Constitutional Law)
This lesson presents another real, excellent response to the July 2017 MEE Constitutional Law question. First, read the essay, then listen to the analysis below.
Excellent Essay
1.(a) The issue is whether the bank has standing to sue State A for damages.
The federal courts of the United States are courts of limited jurisdiction that can only hear live cases and controversies. Among the justiciability doctrines that govern federal courts is standing, which requires plaintiffs to establish that they have a live stake in the controversy. Standing has three constitutional elements and two congressionally created prudential limitations. The constitutional requirements are injury in fact, causation, and redressability. The prudential limitations are the ban on generalized grievances and the assertion of third party rights. A party must have standing for every type of relief sought; past harm can give rise to a claim for damages relief, but a party must show that a certain action is likely to affect them again in the future in order to support a claim for injunctive relief.
Injury in fact requires a harm that is concrete and not abstract; the harm may be widely shared, but it must still not be speculative or conjectural. Here, the bank has suffered a direct and concrete harm from the state's conduct; the bank has lost $2 million in profits due to the shifting of business and it was unable to comply with the state's law because doing so would have required incurring a cost of $50 million.
Causation requires that the plaintiff's harm is fairly traceable to the defendant's conduct. Here, the bank's actions are fairly traceable to the state; if the state had not implemented this statute, the bank could have continued operating as it saw fit. However, it faced a very expensive penalty to comply with the state regulation, and has lost business accordingly being unable to comply. Therefore, causation is satisfied.
Redressability requires that the plaintiff's harm will be mitigated in some way by the relief sought; the relief need not fully cure the plaintiff's harm, but it must be able to reduce the harm in some way. The harm is redressable here;
1.(b) The issue is whether State A is immune from suit under the Eleventh Amendment and the doctrine of state sovereign immunity.
A state defendant is immune from suit under the Eleventh Amendment or the corollary doctrine of state sovereign immunity when it is sued by citizens of the state or citizens of another state, including a corporation incorporated in another state. The defendant must be the state or a state agency or official in their official capacity. The doctrine of state sovereign immunity applies equally in state and federal courts and federal formal administrative proceedings. Sovereign immunity can be waived through Congress's conditional spending power or abrogated using the Reconstruction Amendments (13th, 14th, and 15th). Here, the corporation has sued the state on a federal law claim for damages. The doctrine of state sovereign immunity prevents this suit from progressing.
2. The issue is whether the state official in official capacity is immune from suit under the doctrine of state sovereign immunity.
Under the doctrine of Ex Parte Young, a plaintiff can maintain a claim for prospective (meaning injunctive) relief against a state official in their official capacity based on federal law without violating the state's Eleventh Amendment sovereign immunity. The only caveat is if Congress has passed a law with a comprehensive remedial scheme that, in effect, precludes an Ex Parte Young suit, as they did in the case of Seminole Tribes. Here, the bank is suing in federal court against a state official in their official capacity - the state Superintendent of Banking. Moreover, they are suing for injunctive relief - seeking to enjoin her from enforcing the State A statute. Finally, they are suing on a federal law claim - whether the state law violates the U.S. Constitution. Therefore, the suit against the Superintendent can proceed.
3. The issue is whether the State A statute violates the dormant commerce clause.
The Commerce Clause gives Congress power over interstate commerce. When Congress has not spoken on the subject in a federal statute, the power is said to be in its dormant or negative posture. The dormant commerce clause doctrine prohibits states from regulating in economic protectionist manners. States cannot pass laws that facially discriminate against interstate commerce, regulate wholly out-of-state activities, or unduly burden interstate commerce. States are permitted, however, to favor state agencies or in-state businesses when they act as market participants and favor their own state-owned organs when acting in a traditional governmental function.
If a state law facially discriminates against interstate commerce, to survive constitutional review the state must show the law furthers a neutral, non- protectionist government interest and that there are no other less discriminatory means available to achieve the desired result.
If the state law is facially neutral, the reviewing court will balance the burden on interstate commerce, the state's interest in passing the law, and the availability of less restrictive means to achieve the state's goal. If the state's law still has an undue burden on interstate commerce as compared to the state's interest, the law will not survive constitutional review.
Here, the state law is neutral on its face. State A's law requires all banks that offer funds transfer services to State A business to use biometric identification to verify payment orders about $10,000. This law does not show any economic protectionism on its face; it does not, for example, require banks to use biometric ID systems created by State A companies. However, the law likely does unduly burden interstate commerce; the government's interest was to provide security for substantial transactions. However, experts dispute whether biometric ID is significantly better than other security techniques. Moreover, the State A legislature decided to require it after heavy lobbying from a State A-based manufacturer, which suggests economic favoritism for an in-state actor. The burden on interstate commerce is potentially significant, as coming up to speed would require the banking system to spend $50 million in the large bank in State B. Moreover, there likely are less burdensome alternatives available; the bank's own security experts do not believe biometric ID is particularly reliable. Therefore, the statute likely is unconstitutional because it unduly burdens interstate commerce.
Analysis of the Sample Essay
Transcript
Let's look at a representative good answer provided by the state of New York. And like we did with the earlier analysis, I'll go prompt by prompt, noting what this answer did well, and also what it could have done better. Again, this is a really good answer.
The answer on the first prompt here is really interesting and worth unpacking. First is you can see the test taker has identified two issues here, the Eleventh Amendment issue, which is the right one, and also whether the bank has standing, which is not what the graders are looking for.
So that's not great because, really, the Eleventh Amendment is where we want to be spending our time and effort. There's not really any question that the bank has standing here, so showing that it does isn't adding much value, though it is costing time that could have been better spent elsewhere.
But I do like how this answer divides those two issues into 1a and 1b. That allows the grader to basically skip over the standing discussion and go right to the Eleventh Amendment. Had there actually been two issues here, this would have been exactly the way to address them.
Now, in terms of the actual writing, this test taker is using IRAC instead of CRAC, and as usual, we want to convert those initial issue statements into conclusions. And that'd be easy enough to do here just by changing a few words so that it reads something like, "The suit cannot be maintained because State A is immune from suit under the Eleventh Amendment and the doctrine of state sovereign immunity." And we would bold or underline that text just to make it super clear for the grader.
The rule statement that follows that, though, is excellent. Really no suggestions for improvement there. The application paragraph begins with the word "Here," which is good, but again, just to make things easy on the grader, it's best to just set that off in a new paragraph.
It'll only be two sentences long, but that's okay. There just aren't that many facts to address. And this prompt doesn't include a second conclusion, so we definitely want to add that, just a short "Therefore, the suit cannot be maintained," or whatever.
Let's have a look at the second prompt. I really only have two quibbles here. First, again, it starts with an issue statement instead of a conclusion, and as with the first prompt, that'd be super easy to fix. "The suit can be maintained because Ex parte Young permits plaintiffs to seek injunctive relief against public officials in their official capacity," something along those lines.
The second quibble is that the test taker has everything mushed into one paragraph instead of separating things out. The key words are floating around in there, "here," and "therefore," but we might as well make it easy on the grader to see them. Other than that, though, this is really well done. It's a terrific statement of ex parte rule and a nice application of the rule to these facts.
Finally, let's wrap up with the third prompt. Again, we have an issue statement that could easily be rephrased as a conclusion. And, in fact, the final statement of this prompt would be a great first line. "The statute likely is unconstitutional because it unduly burdens interstate commerce." Could even add, "and therefore violates the Dormant Commerce Clause."
And note, by the way, that this is a different bottom-line conclusion than in the other representative answer, which said that the statute likely is constitutional. And these are two answers that the state of New York distributed as representative good ones. So that's confirmation that at least on a prompt like this, you can do really well regardless of your bottom line, so long as you state and apply the rule thoroughly.
The statement of the rule here is a little extensive. It could be a lot tighter. All we really need to say is that the Dormant Commerce Clause is the negative implication of Congress's commerce authority, and then identify the two classes of laws under Dormant Commerce Clause analysis, and the rules that apply to each.
Protectionist laws get strict scrutiny and are almost always struck down. Incidentally burdensome laws are upheld unless the burdens on interstate commerce are clearly excessive compared to the putative local benefits. This answer takes three paragraphs to cover that, and it's a little repetitive. It's not bad. There's a lot to cover, but overall, this could have been a little better.
Since we've identified these two categories of rules, there are really going to be two applications and conclusions as well, one for the first Dormant Commerce Clause category, and one for the second. This answer kind of mushes them together. It starts off with a nice "Here," and seems to say that the state law doesn't fall into the first category.
So it would have been good to wrap that up with a nice clean "therefore," and then move on to the balancing test for the second category. And I think that's basically what the answer is doing. It could have just been more clear about it.
Really nice work, though, in terms of bringing in a whole lot of facts from the fact pattern. Remember, this is the only prompt where they really matter on this essay. And also the test taker argues pretty effectively here that the burdens are big and the benefits are slight. And that leads to the nicely stated conclusion that this law would be unconstitutional.
And that's it for this question. It was an odd one, since those first two prompts really just came down to getting the rule right, and the third prompt had a two-part rule, but this representative good answer, which, again, is actually pretty terrific, helps show how it could all be broken down. Remember to stick with your formula, keep an eye on time, and you'll do great, even with multipart essays like this one.
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