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Constitutional Law I
Rutgers University, Newark School of Law
Payne, James


C delimits powers of government by enumeration.
It structures rules of engagement btw branches of government on the federal plane (Judiciary, Executive, Legislative- ie separation of powers) & between states and the federal government (ie federalism).

(private party may not sue a state in federal court)
Congress may neither restrict nor enlarge SC’s original jurisdiction. C not expressly provide appellate jurisdiction in Art III, but Court held that it has power:
to hold state statutes unCal, and
to review judgments of state courts in cases that fall w/in judicial power. SC finds act of Congress unCal!!!

Grant of judicial power extends to all cases arising under C & laws of US. Court’s power of judicial review implicit C.
Marbury was a political case, working out the opposing political views. 1801, it was a case about politics, not judicial review.

People established a government of limited power, so Congress must not be the only reviewer of Cality of their own laws, otherwise, there is potential for unlimited power.
C establishes the outer-boundary that the federal courts can exercise.
By Art III, federal courts can have all j° to review the cases that raises a federal question, however, the jurisdiction of federal courts is subject to such regulations as Congress may make – courts start out with all jurisdictions, then Congress can pull back and w/hold, citing exceptions/regulations. Federal jurisdiction is limited to diversity cases and federal question cases.
20th century, re-invigorated view of 14th amendment – court began to address state actions of Cality.

Judicial Review of State Court Decisions.
SC has appellate jurisdiction over highest state courts on issues involving federal C, laws & treaties!

State legislation confiscated property of British loyalists notwithstanding treaty btw US & Britain that protected British owned property. Issue- Does SC have appellate jurisdiction over highest state courts in re: fed issues?
Federal SC has jurisdiction to sit in judgment of the decision of the high court of VA. VA court must obey SC rulings.
All cases involving C, laws & treaties of US are included in judicial power granted by C to SC; hence, all such cases are properly subject to SC’s appellate jurisdiction & sec 25 of Jud Act valid.

Outcome not controlled by Marbury because Martin tightly links federal decision making to states.
Case, not the court that determines the j°. How does the system build in counter balance to SC power? Standing Law– power of federal courts applies to “cases and controversies” – must have a legitimate reason to invoke Marbury
11th amendment involving suits between individuals and state – adopted language that has come to be interpreted as sovereign immunity – even if a federal law/question at stake – a broad area has been carved out where federal principles override the supremacy of federal law.
Ability of SC to review case is completely discretionary.
Must be a federal question. POLITICAL QUESTION- When a case presents a “political question”, court cannot decide the question (bc of separation of powers). Left to political branches (Congress or Executive branch). Way SC avoids judicial review.

6 criteria of PQ on a case-by-case determination:

Lower courts denied relief on grounds of nonjusticialbility. Claim that denied urban voters federal Cal rights
Issue- Whether federal court can hear the litigation at all – have j° over Cal challenge legislative apportionment?
Issue here is whether state’s activity is consistent w/ fed C. Case remanded.
Claim that violation of EP clause of 14th amendment – the vote dilution violated the EP of the laws. Court improperly heard a hypothetical claim based on abstract assumptions. Court now permits federal courts to devise what they feel to be proper composition of state legislatures. A state could derive competent methods of apportionment. (Good Law Today)

The real test comes when the court determines that Tennessee has violated the clause.
1) UnCal the court to exercise the power if it is clear that president should make the decision, then it is inappropriate and illegal for the court to make the decision.
2) Cases that court could hear, but prudential discretion makes it unwise – doing so would raise questions about the government. – court decides to withhold decision.
SC says

– court says that it is the Senate’s sole business, not in the place of the court to say.
Issue: 1) Should the court interfere. Many political question cases arise in context of war and foreign affairs.
Several opinions from the one court – 5 opinions for the 9 justices – no sense of the real holding of the case.
Court ultimately leaves the matter and the treaty is abrogated.

Privilege derives from separation of powers.

Congressional Control of the Supreme Court’s Appellate J°: The “Exceptions” Clause
SC JURISDICTION- SC’s original j° codified in 28 USC 1251 mainly concerns controversies btw 2 or more states. Congress can’t alter original j°. BUT, under Art III, sec 2, clause 2, Congress has power to regulate & limit appellate jurisdiction of SC. Power applies at any time and any stage of proceedings and may even allow Congress to withdraw particular classes of cases from the Court’s appellate review. Congress has codified Court’s appellate j° in 28 USC sections 1254 & 1257.
Review of court of appeals- (sec 1254)- SC may review cases in the ct of appeals by writ of cert or by certification from a court of appeals.
Review of final judgments of highest state courts- (sec 1257)- Ct may review final judgments of highest state courts by writ of cert where the validity of a federal treaty or statute is drawn in question or where the validity of a state statute is drawn in question on the grounds if its being repugnant to the fed C, treaties or laws; or where any title, right, privilege or immunity is specially set up or claimed under the US C, laws or treaties.

Congress Can Withdraw J° During Consideration of a Case.

Ex Parte McCardle- After Civil War, Congress imposed military government in Confederate states. Can Congress abolish SC review of a Cal issue? Whether Congress can w/d j°.
Held- Yes, case dismissed (Chase).
1st Congress established fed courts and prescribed regulations for j°. Here, Congress expressly removed j° previously granted. Court may not inquire into motives of Congress; w/out j° > court cannot proceed.
Congress has exercised control over court – Congress sought to engage the actual outcome of the litigation

McCardle has been read as giving Congress full power under “Exceptions & Regulations” language of Art III to limit SC appellate j°. Congress may eliminate certain avenues for SC review, but not all since this would destroy Court’s role in Cal plan. Although Congress may eliminate SC review of certain cases w/in fed judicial power, it must permit j° to remain in some lower fed court.
If Congress were to deny all SC review of an alleged violation of Cal rights, then violate DP.

Court has no j° where state is named a party. Bars a citizen of one state from suing another STATE (w/out its

d in federal powers. *Important case because established the Doctrine of Implied Powers & supremacy of federal government! Opinion went far beyond needs of the specific case. Now, Necessary & Proper Clause was grant of discretionary power!

The Implied Powers of Article I section 8:
If Congress is given the power to regulate commerce, then does that mean that power has been completely stripped from the states? If there is an impermeable boundary between state and federal, then it puts federal courts under pressure not to interpret federal power too broadly.
If there is a porous boundary between state and federal power, then one can imagine far-reaching federal power; trenching into matters otherwise regulated by the states. Also, one can imagine state powers reaching into matters that are of federal government concern.
Marshall’s View of the reach of federal power is that Congress can go pretty far in reaching national concern matters. Clearly, Congress can regulate the areas of Congress that are truly interstate in character. THIS CASE IS THE BEDROCK OF CONGRESSIONAL POWER.
If Congress has the power to create something and the state has the power to destroy then you have conflicting powers. (Like 9th A not all the powers are enumerated) **In Marbury it was Court v. Congress…here the Court is being very deferential to Congress.**

***Take McCollough’s principles and apply commerce clause.

III. COMMERCE POWER (Legislative Power)
States granted power to Congress to regulate commerce w/ foreign nations, and among several states; if not regulation, states could have erected trade barriers btw themselves w/c would have destroyed union. States intended to be “common market”.
Fed power to regulate commerce among several states overlaps with each state’s power to regulate commerce within its boundaries (concurrent power).

EFFECT ON COMMERCE/AFFECTATION – Congress may reach anything that affects interstate commerce. GATE-KEEPING/COMMERCE-PROHIBITING: the one unambiguous power that congress has is the power to prohibit the moving of goods across state lines. To prevent the movement of things across state lines as an incident of regulating state commerce. (Dynamic Analysis – attaches commerce power to some sort of movement across state lines, not to commerce in the factory).

Champion v. Ames (the lottery case)
Prohibits the shipping of lottery tickets across state lines into state where prohibited
Court upholds the statute because felt that lottery tickets were inherently bad, so they were not prompted to question Congress’s logic here.

Hammer v. Dagenhart(child labor case)
Prohibits the shipment of goods manufactured under child labor (inhumane) across state lines
Court holds the statute prohibiting the commerce of child labor products UNCAL and beyond congress’s power.
The distinction between the 2 cases outcome:
Should not fall on Congress.