The constitutionality of a Congressional amendment

Analyzes the constitutionality of a Congressional amendment that delegates judicial and legislative authority to the BORS,
Paper details:

The University of Virginia case involving alleged violations of the Human Cloning Act (HCA) is one of the most complex investigations the BORS has faced. The case involved diverse legal issues that raised questions of whether the HCA and the BORS legal authority is sufficient to handle such complex cases that might arise in the future. Consequently, the BORS has been in consultation with U.S. Congressional committees about the question of expanding the scope of the BORS authority.

U.S. Congress is proposing a congressional amendment to the HCA that would delegate all judicial review and legislative authority to the BORS relevant to human cloning.

Holland has tasked you with researching and analyzing the constitutionality of a proposed amendment delegating this judicial and legislative authority to the BORS.

Facts: As a general rule, state law governs private and commercial transactions. U.S. Congress, however, is proposing an amendment to the HCA that would delegate broad legislative and judicial authority to the BORS. Under this amendment, the BORS would adjudicate all claims and counterclaims for any disputes that arise out of, or related to, commercial transactions between entities for buying and selling of laboratory and medical instruments, techniques, and research procedures on human cloning.

This judicial review authority would include all common law claims and counterclaims relevant to these human cloning commercial transactions. The counterclaims might be ancillary to, and dependent upon, the original claim, but this is not a requirement under the amendment.

The amendment to the HCA would give the BORS exclusive jurisdiction to adjudicate these claims and counterclaims. In addition, the BORS could order all parties to the claims to comply with the BORS adjudication decisions relevant to these claims and counterclaims. A primary check on the proposed BORS’ adjudication authority is that its decisions would be subject to arbitrary and capricious judicial review by the U.S. State Court of Appeals for the District of Columbia Circuit. Also, any parties subject to the BORS judicial decisions could petition the U.S. Supreme Court via a Writ of Certiorari.

Instructions: Prepare a legal memorandum that analyzes the constitutionality of a Congressional amendment that delegates judicial and legislative authority to the BORS, as described above in Facts.

The memorandum must analyze and address:

(1) whether the proposed congressional amendment would violate Article III of the U.S. Constitution and why;

analysis must compare and contrast, and present arguments for both sides of this legal issue

(2) whether U.S. Congress could change the amendment to increase the likelihood that the U.S. Supreme Court would conclude that the amendment is constitutional under Article III of the U.S. Constitution and why;

specifically explain why/how any changes could increase the likelihood that the U.S. Supreme Court would find the amendment constitutional under Article III of the U.S. Constitution

Please refer to the Background and Information materials in the Background and Information module in Content for details and the Human Cloning Act (HCA).

Also, please review the Supreme Court decision of Commodity Futures Trading Commission v. Schor, 478 U.S. 833 (1986) as a resource.

Format

To: Lorence Holland, Esq.

From: (Your Name), Paralegal

Date:

Re: Constitutionality of U.S. Congress Proposed Amendment to HCA to Delegate Judicial Review and Legislative Authority to the BORS

(1)

(2)

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