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Constitutional Law II
Elon University School of Law
Gaylord, Scott W.

Constitutional Law II – Outline

– Spring 2012 –

Professor Gaylord

I. Constitutional Provisions to know

a. Due Process Clause – federal nor State government can deny any person of life, liberty, or property without due process of law

b. Equal Protection of 14th Amendment – 14th Amendment – “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

c. 1st Amendment Freedom of Religion – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.

II. Ways the legislature or executive influence and/or limit the judiciary

a. Judicial selection.

b. Impeachment.

c. Control over size and budget.

d. Control over jurisdiction.

e. Constitutional amendment.

f. Executive enforcement.

g. Executive pardon.

III. Justiciability – whether or not the court can hear a case

a. Purpose

i. Justiciability requirements focus on the proper role of the judiciary within our federalist system.

ii. Art. III.2.1: “[T]he judicial Power” extends only to “Cases” and “Controversies.”

iii. Separation of powers

1. Power limited to case or controversy

2. No advisory opinions

iv. Prudent judicial administration

b. 3 Considerations

i. Who? (standing)

ii. When? (ripeness)

iii. What? (subject matter)

c. “Not you, not us, too late, too soon”

i. Not you – standing

ii. Not us – political question are left wholly to executive

iii. Too late – mootness

iv. Too soon – ripeness

d. Purpose for justiciability

i. Ensure that controversies are based on concrete facts.

ii. Ensure vigorous advocacy.

iii. Promote judicial restraint.

iv. Limit the quantity of litigation.

v. Restrain officious intermeddlers.

e. Advisory Opinions

i. Allowed in some state courts

ii. NOT allowed in federal courts

1. Separation of Powers – “Congress on majority vote of both Houses of Congress may request and shall receive a Court determination as to the constitutionality of legislation pending before and being considered by Congress.”

2. Thomas Jefferson (1793): “The President therefore would be much relieved if he found himself free to refer questions of this description to the opinions of the judges of the [Court], whose knowledge of the subject would secure us against errors dangerous to the peace of the United States, and their authority to insure the respect of all parties.”

iii. Conditions that must be met to avoid having a suit dismissed as an advisory opinion:

1. An actual dispute between adverse parties, AND

2. A substantial likelihood that a decision in favor of a claimant will have some effect

iv. Precludes “collusive” suits – both sides in cohoots w/ eachother b/c they both want the same outcome

v. Declaratory Judgments – action about the statement of your rights which is permitted but you can’t just frame an advisory opinion as a declaratory action

vi. Bush v. Gore

1. Argument that the court issued an advisory opinion – when issuing its decision, Court could not know whether the counting would be unequal (because it had not happened yet) or whether a decision would be necessary (because Bush may have won under the recount).

2. Argument that the court did NOT issue an advisory opinion – Court’s opinion decided the election by resolving an actual dispute between adverse litigants (this is what the court found)

f. Standing – reflects the Court’s determination that a particular person is the proper party to present a particular issue to the Court for resolution

On exam, if he says “assume they have standing, etc”

i. 2 Criteria

1. Constitutional Requirements

a. General

i. Predicated on Article III

ii. Congress CANNOT override these and create standing in contravention of a constitutional requirement

b. 3 Requirements

i. “An injury in fact” that is

1. Injury must be “actual or imminent”, not “conjectural or hypothetical.”

2. Litigant must have a “personal stake” in the alleged dispute such that the injury is “concrete and particularized.”

a. Plaintiff must have personally experienced harm

b. If plaintiff is seeking injunctive relief, then they must show that he is likely to be injured again in the future

3. Lujan v. Defenders of Wildlife, p. 32 – plaintiffs sued requesting an injunction requiring the Secretary of Interior to reinstate an initial interpretation of the Endangered Species Act but the court dismissed the suit because there was no injury in fact because it was too speculative that the plaintiffs would be injured.

ii. “Fairly traceable” to ∆’s action and

1. Causation (Proximate Cause)

a. “There must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly [traceable]’ to the challenged action of the defendant…”

i. Allen v. Wright – parents sued that IRS had failed to fulfill its obligations to deny tax-exempt status to racially discriminatory schools. “[It] is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. Moreover, it is entirely speculative [whether] withdrawal of a tax exemption from any particular school would lead the school to change its policies.”

b. “… and [not] the result [of] the independent action of some third party not before the court.’”

i. Allen v. Wright: “From the perspective of the IRS, the injury to respondents is highly indirect and ‘results from the independent action of some third party not before the court.’”

2. *Note – very often the argument for causation & redressibility will be the same, especially if there are intervening causes.

3. *On exam, discuss causation separately from redressibility but state that they are very similar

iii. “Redressable” by judicial decision

1. Relief

2. “[I]t must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed’ by a favorable decision.”

3. Independent intervening factors undermine the court’s ability to give relief

4. Lujan – agencies may still fund projects and even if not, projects were likely to go forward with other funding

iv. Exception:

1. Massachusetts v. EPA, p. 37 –

a. Facts: A group of States, local governments, and private groups alleged that the EPA had failed to fulfill its obligations under the Clean Air Act to regulate the emissions of certain greenhouse gases, including carbon dioxide. Congress authorized this type of suit to challenge EPA action such that Massachusetts “can assert that right without meeting all the normal standards for redressability and immediacy.”

b. RULE: When a sovereign sues, there is a lower standard for Redressibility.

c. RULE: A small attenuated step is enough for causation

2. Prudential Requirements


nstitutional violation. By the time the case reaches the Supreme Court, Steve is in his third year of law school. Should the Court hear the case?

2. Compare Steve’s case with that of a single, pregnant woman challenging the constitutionality of a state abortion law.

h. Ripeness

i. The Court invokes ripeness to distinguish those cases that are premature for review from those that are ready to be decided

ii. Factors to consider:

1. Hardship to the parties of withholding judicial consideration.

a. Abbot Farms – statute requires the brand name and generic name on drug labels and Abbot argues that this will hurt his business and if he waits until it does to sue, the damage will already be done and it will have cost millions to comply

2. Fitness of the issues for judicial determination

a. Is there a developed record or not?

iii. Under certain circumstances, the Court will allow pre-enforcement review of a statute or administrative regulation

iv. Hypos where the court would permit pre-enforcement because the Court wants to avoid putting person in the position of having to choose between violating the law and risking punishment and complying with the law and losing the ability to challenge the constitutionality of the law.

1. Local community passes a zoning ordinance that restricts the use of plaintiff’s property to residential purposes. Although the government has not threatened enforcement, the landowner files suit, claiming that the ordinance impairs the value of the property. What result?

a. It is very likely that the suit will be allowed to go forward

2. State law precludes the use of contraception. Must a resident wait until she is prosecuted for violating the law to raise a constitutional challenge?

a. Explain hardship

b. Explain “fit for judicial review” (on exam use these words and say why)

i. The court can do something

ii. This is not a very factual question but matter of law

iii. The more the question of law, the more appropriate the case is for the court to hear

i. Political Question

i. Overview

1. Marbury – “questions, in their nature political.”

2. The doctrine does not withdraw from judicial review all matters with political overtones. (see Bush v. Gore and Baker v. Carr)

3. Distinguishing between situations where (i) the executive had unlimited discretion and (ii) the claimant sought to vindicate a specific right.

4. Political questions are those that are committed to, or are more appropriately decided by, one of the other branches

a. Textual or structural commitment to the other branches.

b. Prudential considerations—avoid:

i. Interbranch conflict

ii. Multiple voices in foreign affairs.

iii. Unseemly confrontation with other branches.

iv. Speaking in area in which Court lacks judicial competence.