Question One
The governments of Canada, the United States, and Mexico have decided to dramatically increase the level of economic and social integration. In an effort to make it easier for labor to move throughout the continent, the three countries agreed to a treaty that allows the citizens of the three countries to work and live in any one of the countries without having to go through a complicated visa and work permit application process. The treaty and accompanying implementing legislation were approved by all three countries according to their constitutional processes.

It was assumed that workers would move with their families, so the treaty addressed the portability of school records, and the harmonization of curricula. The three governments wanted there to be some similarity across the countries regarding what is taught at each grade level, so that parents moving among countries would know what their children would be taught, and would not have to worry about their children having to repeat lessons or do work for which they had not been prepared previously. Accordingly, the treaty gave each country's executive branch the right to implement agreed upon standards and curricula at the local level.

During the negotiations, the American negotiators realized that the federal government could not force state and local governments to teach the new curricula, so, the implementing legislation includes incentives that are designed to induce the states to voluntarily agree to the new curricula. Specifically, states that adopt the new curricula would receive a 30% increase in the federal funding that they received for primary and secondary education. For the average state, this would equal an increase of approximately 7% in the size of the state budget.

However, school curricula was not the only area were the governments felt that international harmonization was needed. They also saw the need to make licensing portable as well. Many professionals (i.e. engineers, doctors, real estate agents, etc.) require licenses from state governments to sell their services, and getting new licenses in different jurisdictions can be expensive and difficult. In order to facilitate the easy movement of labor and capital among the three countries, it was agreed in the treaty that all of them would make licensing as portable as possible. To this end, the US government as passed implementing legislation giving the executive branch the right to set national standards for professional licensing in many areas.

Imagine that you are the Attorney General of Idaho. At meeting after meeting, you have heard the Governor of Idaho, Betty Walters, rail against the treaty as an outrageous invasion of state sovereignty, and a naked attempt to change the balance of power between the states and the federal government. She is furious about the fact that the federal government is trying to take away the states' traditional power to regulate professional licensing through the use of the treaty power, and then offering them a bribe to get them to accept federal standards in education.

The governor has asked for your opinion on two issues:
1. Is the federal government's use of the treaty power to take over control of professional licensing constitutional?
2. Is the federal government's plan to offer funds to induce state compliance with its curricula harmonization scheme constitutional?
 
Question Two
The nation was stunned when Wisconsin's Governor, Betty Smith, signed a bill that entirely banned the production, sale and possession of consumable tobacco products in Wisconsin. No longer would chewing tobacco, snuff, or smoking tobacco be allowed to sold, produced or possessed in Wisconsin. Violations of the law were punishable as misdemeanor offenses. The law is set to go into effect in one year.

In signing the bill, the governor pointed out that in Wisconsin, nearly 7,000 people die annually from illnesses directly related to smoking. The governor also pointed out that tobacco use cost Wisconsin approximately $4.5 billion annually in health care expenses and lost productivity. This bill was aimed squarely at reducing the number of tobacco related deaths in the state, and at reducing health costs related to tobacco use.

The CEO of the Milwaukee-based tobacco company, J.R. Manly & Sons, has come to your firm, Waters, Towell and Drips, for legal advice. J.R. Manly sells tobacco products in many states in the United States and in some foreign countries. It has millions of dollars in contracts to sell cigarettes to retailers throughout Wisconsin. J.R. Manly's CEO, Beth Koster, has told your firm that she is worried by Wisconsin's new law, because of what it will cost the company in lost projected sales (which she estimated would be $5 million over the next year), but also because she fears that other states will follow Wisconsin's lead and ban tobacco. Koster has asked your firm to represent the company in a possible lawsuit aimed at stopping the law from being enforced once it goes into effect.

In preparation for possible litigation in federal court, the senior partner has asked you to prepare a memo that addresses the following issues:
1. What argument(s) could be put forward to support the position that Wisconsin's law is unconstitutional and that enforcement of it should be enjoined?
2. What is the likelihood that this argument or arguments would succeed in federal court?

As you write your memo, keep in mind the following facts:
Many other tobacco companies have contracts to sell tobacco products to retailers in Wisconsin, and they stand to lose millions in revenue if the law goes into effect.
The federal government heavily regulates the advertising and packaging of tobacco products.
The federal government mandates disclosures about the health risks of tobacco use.
The federal government regulates what health claims companies can make about tobacco products.
Courts have held that state laws regulating the content of tobacco products, their advertising and packaging are preempted.
Federal law is silent on the question of whether states have the right to ban tobacco products.