Here is the short essay question from the midterm with a model answer:
Short Essay Question
1. Congress is considering passing a statute to protect abortion rights by allowing for the removal to federal district court of any civil case in state court the outcome of which would ride upon abortion rights derivable from the due process clause of the 14th Amendment. In one paragraph, is the statute constitutional and why or why not? [8 points]
This removal statute would expand federal question jurisdiction beyond what is currently allowed under 28 USC section 1331 (as interpreted by Mottley) by allowing for federal jurisdiction when the 14th Amendment comes up in a civil case as a defense. The constitutionality of the statute depends upon whether the Constitution gives to the United States judicial power over such cases. Art. III, sect. 2 gives to the U.S. judicial power to all cases “arising under” the Constitution and this has been interpreted to include federal defenses. So the statute is constitutional.
You got points for the following:
1) saying that the statute was contitutional because it was compatible with "arising under" jurisdiction in Art. III section 2 [5 points] (two extra points if you specifically statuted that arising under includes federal defenses).
2) mentioning that the statute expanded federal jurisdiction beyond the scope of section 1331 (as interpreted by the Mottley rule) [1 point]