Seng Conlaw Fall 2011
Overview of Constitutional Law:
When doing an essay exam or looking at a case, first question to keep in mind is there a case or controversy. ( in federal opinions) Why did the plaintiff have standing? The fact they heard the case shows that there is a case or controversy. Is it an advisory opinion, is there standing, is this a political question- ask yourself during final.
§ Article I: Powers of Congress, Congress can regulate Article I courts.
§ Article II: Executive powers
§ Article III: Judicial power, Relationship, Federal courts are governed by what is said in this Article. State courts are not bound by this. Article III judges are there for life, unlike other judges. Defines jurisdiction for federal courts. Congress shall have courts with appellate jurisdiction with such exceptions as congress shall make.
§ Federalism: the power of federal government
§ One Supreme Court is required by the constitution.
§ The judiciary act of 1789: outlined the framework of the court which is still in place today. Implement Article III.
§ Article of Confederation: first Constitution did not provide federal courts. All disputes were settled in state courts. They gave state sovereignty. Created a weak national government and embodied a strong commitment that state governments retain sovereignty.
§ Supremacy clause: declares that the Constitution and the Laws of the U.S. shall be made in Pursuance therefore and all Treaties made, or which shall be made, under the Authority of the U.S. shall be the supreme Law of the Land. The constitution as construed by the supreme court is the law of the land
When states ratified the union, they gave up some sovereignty and if they violate some of the principles, the state can be sued in federal court under supremacy principles and remedy can be procured
When state law conflicts with the constitution, the supremacy clause puts constitution above
§ If the court can avoid a constitutional decision, then they do it. Respect of separation of powers. The courts would rather look at statutory law issues rather than constitutional law issues.
Judicial Review: Judicial review in the United States is when the court reviews the constitutionality of a law or statute with the Constitution. The laws set by Congress can be reviewed by the courts to see if they are constitutional or not. That is the essence of judicial review. Marbury v. Madison was the first case to declare an act of Congress unconstitutional and also incepted the concept of judicial review. The Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury was the first Supreme Court case to strike down an act of Congress as unconstitutional. This case established judicial review. The Judiciary Act of 1789, section 16 was unconstitutional. Congress created the Judiciary Act of 1789, which included a clause which allowed the Supreme Court to issue a writ of mandamus outside its appellate jurisdiction. Congress wanted to expand the Supreme Court’s jurisdiction, but that is going against the Constitution.
Congressional Power: The power Congress has. Congress has the power to revoke jurisdiction from the Federal Supreme Court. Supreme Court says since Congress does have the power to repeal the Supreme Courts appellate jurisdiction, congress revokes the jurisdiction of the Supreme Court and Supreme Court no longer has jurisdiction to hear the case. In Ex Parte McCradle, Congress granted the Supreme Court jurisdiction to issue writ of habeas corpus and now they repealed it, so the Supreme Court cannot decide the matters of this case because it does not have jurisdiction to do so. The Supreme Court does not have jurisdiction because Congress repealed the power it granted. Appellate jurisdiction is conferred by the Constitution but is subject to limitations imposed by Congress.
Writ of Habeas Corpus: Through which a prisoner can be released from unlawful detention.
Review of State Decisions: The Supreme Court of the United States has jurisdiction to hear state decision if they are contrary to any statute or law. Section 25 of the Judiciary Act of 1789 provided that a final judgment or decree in the highest court of law or equity of a State in which a decision in the suit could be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error in three classes of cases. All three provisions limited review to those cases where state courts had rejected claims made under the federal Constitution and laws. The need for uniformity of decisions throughout the whole United States also calls for Federal courts to have appellate jurisdiction over state court decisions. In Long, the USSC held that if there isn’t a plain statement saying the court relied independently and adequately on state grounds then the USSC has jurisdiction to review the case. But the USSC can only look at the federal question asked in the case not anything else. If the state cases establish an adequate and independent ground from the decision then there is no need for the United States to interfere. Interfering would only provide advisory opinions, which is something we do not want to do. But here, the court below relied exclusively on its understanding of Terry and other federal cases
The Supreme Court has the authority to change the lower court’s (state courts) decision if it is in violation of the Constitution or law.
Original jurisdiction: it is the proper court to hear it first
Appellate jurisdiction: reviewing a case that has already been heard by a lower court
Standing: case or controversy.
· Real life dispute between two parties is necessary for standing: personal stake in the outcome of a controversy. Does not depend on the merits (cause of action) of a lawsuit. Causation: has P alleged injury caused by the defendant.
· The plaintiff himself must have suffered some threatening or actual injury resulting from the putatively legal action
· A plaintiff must allege that the challenged practices affect him specifically and that court intervention would personally benefit the plaintiff.
· Advisory opinions-justice department
· Court recommends, congress has discretion
· If it is an Article 3 court, then it is binding
· Congress cannot retroactively change the law or change a final judgment because it would render the Supreme Court decisions an advisory opinion
· Looks from the perspective of the party. If someone is not affected by the litigation, they won’t have standing
· Standing can also be raised by defendant- may want to assert that a statute is unconstitutional.
· Two dimensions of standing:
o Article III minimum: Any injury will satisfy the constitution minimum
§ Plaintiff must have suffered an injury in fact- Wrath v. Seldin- P did not actually suffer because they weren’t in the process of building a house or buying.
§ There must be a causal connection between the injury and the conduct complained of
§ It must be likely that this injury will be redressed by a favorable decision
o Prudential: judicial self-restraint, policy reasons, discretionary with courts. Even if they reach the minimum, the court may decide it is not good standing for policy reasons. Sound judicial practice or barred because of Article III. If you are dismissed under prudential, Congress can overwrite them. Marbury v. Madison
· Three grounds we deny standing even when minimum is met:
o Cannot raise third party rights (limit only YOUR situation): There are certain situations where courts will allow third party rights. Ex. Associations.
o Generalized grievance: If it is too generalized, if your injury is the same as everyone else, you cannot sue. Ex. Taxpayer standing. Injury is so generalized that it’s an intangible right enjoyed by everyone and you haven’t been injured directly in any way
o Zone of interest: if Congress passes a law and you affected by it, then you have to show you have a zone of interest. Limits broad language of Article III. Judge made rule=prudential.
· Associations have standing in two ways:
o Itself is injury (the association)
o Members are injured- sue on behalf of member: effective third party standing
Craig v. Boren: Woman bartender sues on behalf of a man who isn’t allowed to drink until 21 but woman are allowed to drink at 18. There is discrimination between the sexes. The court ruled that the bartender (woman) has standing because she is suffering a financial injury (losing market-share).
Lujan v. Defender: Women wanted the ESA to apply worldwide as it did in its initial interpretation. The reason for this change (went from applying worldwide to only nationwide) was the Presidential election- Carter extended regulation worldwide and Regan made it nationwide only. The women do not have standing because this is too generalized. Injury of private individuals: government not performing the right procedure. Congress cannot confer standing in a non-case or controversy situation. As a matter of Article III, they don’t see an injury in this case.
Raines v. Byrd: Congress sues because their voting rights are being infringed by the Line Item Veto Act (the President may cancel certain spending and tax benefit measures after being signed them to law). They do not have standing because they do not have a loss of a private right, but simply a loss of political power.
Mootness: A case is considered moot if a justiciable controversy existed when the case was filed, but circumstances after filing the case indicate the litigant no longer has a stake in the controversy. “Federal courts are without power to decide questions that cannot affect the rights of litigants in the cases before them” Issue may be alive but the particular case cannot happen again, therefore, it is moot. Ex. The boy that sued the law school but he was about to graduate so the case was moot. This issue is capable of repetition by evading review- important issue that will keep coming up, but with different plaintiffs. Mootness is an Article 3 case or controversy matter at its core. All cases may be capable of repetition but evading review because by the time they get to the SC they may be moot. When damages are involved the case does not become moot. If the prisoner is subject to the rule and he could be in a 10 day confinement again then it is not moot.
Roe v. Wade: abortion case, capable of repetition but evading review.
for future generations. Marshall provides a generous reading of the constitution. Whatever power the federal government is limited to-the state shall have that power. Example: regulating healthcare. Congress has power to create the bank because the Constitution does not forbid this and pretty much gives Congress a great power. The government should not be dependent on the states. The states should not tax government banks. States are represented in the federal government so the part taxing the whole is not allowed. The Supremacy clause: Power to tax is power to destroy/interfere; States cannot interfere with the legitimate power/ operation of the federal government. The federal government can tax the states. This tax is discriminatory. If the state is actually trying to regulate the federal government they need to receive consent first from the government. Private contractors dealing with government is a different thing.
Necessary and Proper Clause: Marshall reads very broadly (expanding). Gives Congress means to execute any of the enumerated powers. Congress chooses what means are appropriate (all means are appropriate if they are within the scope of the Constitution). Congress does not have a lot of choices in the end- limited. The decisions under this clause are legal questions. Article 1 Section 8 gives Congress power to borrow money. Congress may find it convenient to have a bank so they can borrow money from it. Congress has the power to regulate commerce. Bank would be useful for people in business.
Synonyms for necessary and proper: means, convenient, useful, appropriateness.
Enumerated power: is the end. The necessary and proper clause is not an enumerated power, it’s a broadening power. Enumerated powers are power to tax, power to regulate money. Enumerated powers are listed power in the Article 1 Section 8. Other powers can be a means to accomplish the enumerated powers. Congress could decide it’s useful or convenient to have a bank so therefore you don’t have to find an express provision for everything Congress does, but you have to be able to tie in everything Congress does to their enumerated powers.
Means-end Approach: Let the end be legitimate- let it be within the Constitution then Congress can adapt the means which are appropriate then the ones not expressly prohibited by the Constitution. Ends- federal regulation- you have to tie to something in Article 1 Section 8 or due process or Amendment. Means- Congress can do what is appropriate- most things that Congress creates are means. Identify end thru enumerated power and then look at means to see if they are appropriate, necessary, and proper. Necessary and proper clause is a grant of power, not a restriction.
Concurrent Powers: The state and federal government have power to do things simultaneously. Tax returns.
U.S. v. Comstock: Does Congress have power to detain people who are sexually dangerous after they have completed their time?
Majority: Congress does have power to detain people because of the necessary and proper clause. Congress can criminalize certain conduct because it is an enumerate power. Congress can determine whether it is appropriate to detain sexually dangerous people. The court ruled on only one issue because one is of national importance so it should be settled now. And the other issue should be deliberated more by the lower court before they decide or they may think that the facts of the case on hand are not the one that they want to use to decide that particular issue. The necessary and proper clause grants Congress authority sufficient to enact the statute before us. The statute constitutes a means that is rationally related to the implementation of enumerated powers. Broad authority even when not explicit in Constitution, necessary and proper clause, federal government is custodian of its prisoners so they can do with them as they choose “reasonable adapted”, the statues properly accounts for state interests, requires accommodation of state interests, the links between the statute and an enumerated Article I power are not too attenuated. Congress could set up mental hospital for military patients- enumerated power.
Dissent: There is nothing in the Constitution that Congress has power to detain. State should deal with them. Violates 10th amendment.
