Thursday, December 1, 2016
It's time again for Constitutional Law final exam. In previous posts, such as here, we've discussed the common strategy of using current controversies as exam material, and have highlighted the best practices regarding final exam drafting, including the baseline that the exam question must include ALL the specific material and explanations that a student would need to answer the question and not rely upon extraneous information that not all students might share.
This end-of-semester, the President-Elect has provided ample fodder for exam material.
A good place to start would be the ACLU Report entitled The Trump Memos, a 27 page discussion of issues of immigration, creation of a Muslim "database," torture, libel, mass surveillance, and abortion. Embedded in many of these issues are constitutional structural considerations involving federalism (e.g., sanctuary cities) and separation of powers (building "the wall).
For First Amendment issues, augmenting the ACLU's libel discussion with the ABA section article about Trump as a "libel bully" provides lots of material. There is also the recent "flag-burning" tweet, though this may be too simple given the precedent, although it could be combined with the lesser known doctrine regarding denaturalization, as we discuss here.
Lesser known doctrine that may not have been covered this semester (but presumably would be covered next semester) includes the Emoluments Clause, given Trump's many possible conflicts, as we've mentioned here and here. Additionally, some argue that the "election" is not "over": recounts are occurring and there are calls for the Electoral College to select the popular vote winner as President. The problems with the voting and the election could also provide exam material; there are also interesting equal protection voting cases such as the recent Ninth Circuit en banc case.
While Trump looms large on the constitutional landscape, there are also some interesting cases before the United States Supreme Court, in which the issues are more focused.