Peter M. Shane: Course Infomation

Sample Final Exam Questions: Law and the Presidency
Professor: Peter M Shane

This is a three-hour limited open-book essay examination. Students may have with them any notes prepared by them, as well as copies of notes prepared by other students in this year's class, so long as any students using notes prepared by others cooperated in preparing the notes for the exam. The class text is the only set of commercially prepared materials that students may have with them. Photocopies of any other commercially available works or portions thereof, or notes prepared in whole or in part by any students not enrolled this semester in Law of Presidential Power, are not allowed. No materials in the form of computer files, tapes, video, or other electronic media are permissible.

The answers to each of the three questions will count as indicated. You must answer all of the three questions. I strongly advise that, before writing, you read the question thoroughly, outline the issues before answering, and organize your presentation to highlight your understanding of (a) the problems presented, (b) the relevant legal principles, (c) and your analysis of the posed hypotheticals in light of existing law (including areas of ambiguity and their most reasonable resolution).

BE SURE, in preparing your answers, to follow these rules:

On the multiple choice exam, mark your sheet clearly with the pencil provided. Do not mark more than one answer per question.

For your essay, write or type on ONE SIDE OF THE PAGE ONLY!

For your essay, write or type only on every other line.

When the exam is over, you are required to return the questions and any notes you take as well as your actual answers. In grading your exam, however, I will refer only to the machine-graded answer sheet and the essay answers that appear in your designated answer books. UNDER NO CIRCUMSTANCES WILL ANY WRITTEN MATERIAL PREPARED PRIOR TO THE EXAMINATION, INCLUDING CLASS NOTES OR OUTLINES, BE ACCEPTED AS PART OF YOUR ANSWERS.

Part One

Imagine that the following events had occurred at the time of the Persian Gulf War:
A.
In February, 1991, U.S. steelworkers commenced a nationwide strike, effectively shutting down the nation's steel mills.
B.
The labor law provisions applicable to this sort of emergency were exactly the same as in 1954.
C.
To assure the continued production of ammunition and other matériel for the Persian Gulf War, President Bush authorized the Secretary of Commerce, Robert Mosbacher, to order the Pennsylvania National Guard to take over and operate the steel mills of Western Pennsylvania.
D.
Twelve members of Congress (three Democrats and three Republicans from both House and Senate) joined those companies in seeking to enjoin the Secretary of Commerce from implementing the President's order (Dellums v. Mosbacher).
E.
Rep. John Dingell, chair of the House Energy and Commerce Committee, scheduled an immediate hearing.

He subpoenaed both the Secretary of Commerce and all documents in the Secretary's possession that would have shed light on the necessity (or lack of it) for taking over the steel companies in order to prosecute the Persian Gulf War. The subpoena stated the focus of the investigation as, "the need for Congress to determine whether current legislation for regulating and protecting interstate commerce is sufficient to permit a proper balance between sound labor and national security policy in a time of national emergency." The Secretary of Commerce immediately filed suit to enjoin any House employee from serving the subpoena for documents (Mosbacher v. House of Representatives).

Imagine you were law clerk to Judge Harold Browne, who presided over both of the Mosbacher cases. Judge Browne asked you to prepare a memorandum briefing him on each of the following issues:
1.
Whether the Congressional plaintiffs had standing in the Dellums case?
2.
Whether the Dellums case raised a "political question"?
3.
On the merits of Dellums, was the President's order lawful?
4.
Assuming that all relevant facts were as stipulated and cross-motions for summary judgment were filed, would it have been procedurally appropriate for Judge Browne to have decided Mosbacher v. House of Representatives on the merits in February, 1991?
5.
If he reached the merits, would Congress have been entitled to the documents at issue in Mosbacher v. House of Representatives?

Please prepare a memorandum containing what would have been your advice to Judge Browne.

Part Two

We have identified various Supreme Court adjudications of separation of powers disputes as "formalist" or "functionalist." We have called "functionalist" those opinions that determine the constitutionality of a presidential or congressional initiative with reference to the operational likelihood that the initiative, on balance, would contribute to the sound functioning of government. We have called "formalist" those opinions that purport to assess constitutionality by fairly direct reference to constitutional text or history without conspicuous attention to whether the challenged presidential or congressional initiative would be likely, on balance, to contribute to the sound functioning of government.
A.
Explain why you regard some judicial decision we have read on a separation of powers question to be formalist. Explain how a judge or justice, intelligently employing a functionalist approach, should properlyanalyze the same problem. If the outcomes are different, why do you think that might be?

B.
Explain why you regard some judicial decision we have read on a separation of powers question to befunctionalist. Explain how a judge or justice, intelligently employing a formalist approach, should properlyanalyze the same problem. If the outcomes are different, why do you think that might be?

Part Three

Imagine that Congress enacted a statute called the Computer Export Security Act of 1977. Under this hypothetical Act, Congress required any exporter transferring computer technology [whether "hardware" (that is, electronic equipment) or "software" (that is, programs)] to another country to obtain a license from the Treasury Department as a prerequisite to the export. The Act further authorizes the President to issue regulations, to be implemented by the Treasury Department, to assure that exports of computer technology are consistent with the national security of the United States. In addition to these general provisions, the Act contained the following particulars:
(a)
A requirement that the export of military applications-related computer technology to any country be conditioned on a written determination by the President, to be reported "promptly" to Congress, that the export is consistent with the national security of the United States;

(b)
A ban on the export to Zimbabwe of military applications-related computer technology or of any computer technology designed to aid in that country's cryptographic intelligence work (that is, in the decoding of messages), until Zimbabwe chooses a government under "majority rule, pursuant to a multiparty election"; and

(c)
A permanent ban on the export to "Warsaw Pact nations" of computer technology designed to aid in cryptographic intelligence.

President Clinton has the following problems at hand:
1.
North Korea has offered to help secure the release of U.S. prisoners in Iraq if Clinton permits the exportto North Korea of U.S. computer software designed to assist in the training of military pilots. By U.S.standards, the software in question is no longer considered very sophisticated; South Korea, for example, has a much better system already. President Clinton wants to know, assuming the deal proceeds, if he can delay notifying Congress until the prisoners are released, a process he expects may take four months from the time he permits the export of the software to North Korea.

2.
Zimbabwe has asked Clinton to permit the export of U.S. software that would enhance the capacity of the Zimbabwean army to intercept and decode electronic messages from suspected drug traffickersheadquartered in Johannesburg, South Africa. Zimbabwe has offered to share all intelligence received and decoded through this software with the CIA. President Clinton wants to know if he can permit the transfer in light of steps Clinton regards as significant, which the Mugabe government has taken to increase political pluralism in Zimbabwe, even though there is still no majority-elected government resulting from a genuine multi-party election in Zimbabwe.

3.
Czechoslovakia has asked Clinton to permit the export of U.S. software that would enhance the capacity of that country to intercept and decode electronic messages from Russia. Although the Act defines "Warsaw Pact countries" to include "Czechoslovakia," President Clinton wants to know if he can permit the export because the Warsaw Pact has now been dissolved by the member states.

4.
Although the statute is silent on this particular problem, President Clinton wants to know if he may implement a regulation that would prohibit the transfer of military applications-related computer technology or of any computer technology designed to aid in a country's cryptographic intelligence work to any country engaged in unfair discrimination against U.S. imports. The ban would operate whether or not the particular export for which a license is sought would have negative implications for U.S. national security.

Please advise President Clinton on these questions.