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Constitutional Law I
Rutgers University, Newark School of Law
Pope, James Gray

I. Judicial Review (Power of the courts to declare legislation or executive acts invalid as unconstitutional).

Marbury v. Madison: Established judicial review. P.1

-Established the judiciary’s power to declare federal legislation unconstitutional.

-Judicial Review: Federal courts and ultimately the Supreme Court, have the power (and possibly the obligation) to decide if laws enacted by Congress or actions of the executive branch are in violation of the Constitution.

-Article III: The Supreme courts may only exercise the jurisdiction permitted under Article III which really consists of federal questions.

Justice Ability Doctrines

Standing: The question of whether the plaintiff is the proper party to bring him into the court for adjudication

Requirments for Standing:
a. Plaintiff has to prove he has been or will imminently be injured.
Plaintiff must present personally suffered injuries.
Sierra Club v. Morton: Disney wanted to build a ski resort on Mountain Lake and Sierra Court sued to prevent building. Sierra amended their complaint saying they used Mountain Lake and this was permissible.

b. Causation and Redressability: Plaintiff must allege and prove the defendant caused the injury so a favorable court decision is likely to remedy the injury.

c. No Third Party Standing is allowed: Plaintiffs cannot present the claims of others who are not before the court. Exceptions: A plaintiff who meets the other standing requirements may bring claims of other parties if:
1. Close relationship between the plaintiff and the injured third party. Ex. Doctor patient relationship. Laws limiting abortion inflicted injury on the loss of business
2. Injured third party is unlikely to be able to assert his or her own rights. Third party can’t come to court to protect itself.

d. No Generalized Grievances are allowed. These people lack standing. Generalized Grievance refers to a particular kind of injury. Plaintiff must not be suing solely as a citizen or as a tax payer. Ex. Can’t be a taxpayer suing for taxes being spent wrongfully for the government.
1. One Exception where Tax Payers standing is permitted: Taxpayers do have standing to challenge taxpayer expenditures under a violation of the Establishment Clause. Ex. Gov. giving funds to parochial schools.
-However, taxpayers lack standing to challenge federal government grants of property to religious institutions. Government said you can challenge money and not property in violation of the Establ. Clause.
2. Rightness: May the federal court grant pre-enforcement review of a statute for regulation? If you see a question asking for a declaratory judgment, solution is rightness. Evaluating Rightness:
a. Hardship plaintiff will suffer without preenforcement review: More hardship, more likely court will hear the case.
b. Fitness of the issues in the record for judicial review.
Ex. Rightness: FDA adopting a new regulation requiring labels state generic name of drug. FDA brought action based on rightness saying no drug company has been prosecuted for breaking this rule. FDA wanted court to wait until someone violated this.
3. Mootness (third justicability requirement): If events after the filing of the lawsuit occur, the case will be dismissed as moot. Plaintiff must have a “live” injury and if the plaintiff’s injury goes away during the filing of an action, the case is dismissed.
a. Wrongs Capable of Repetition for review. Ex. Roe v. Wade. Abortion case. During the case, she was no longer pregnant but court said they will decide the case because she can become pregnant again so it can be repetitive.
b. Exception for voluntary susation: If the defendant voluntarily halts the offending practice, but has freedom to resume it at any time, the court will not say this is moot. Ex. Employer has a racial test, but when case is filed, he stops using it, but he has the ability to use it again. This case will not be dismissed as moot.
4. Political question Doctrine: Refers to allegations of constitutional violations that the federal courts will not adjudicate. 4 Cases that are dismissed:
a. Cases under the Republican Form of Government Clause are dismissed as non-justicible questions.
b. Challenges to the President’s Conduct of Foreign Policy.
c. Challenges to the impeachment removal process.
d. Challenges to partisan gerrymandering.

II. Federal Legislative Power

Article 1 of the Constitution defines powers of Congress

Federalism:
1) University of individual choice (utility).
2) Experimental Laboratories
-Brandice’s Point: Ex. Gay marriage in Mass. Experimenting to see if it will work.
3) Thwart Tyranny: How do states thwart tyranny? By having individual states, you spread the power out. Nation can’t have all the power at once. Ex

and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
Ex. End: Need an army.
Means: Go out and kidnap people for the army. This is prohibited. Means can’t be prohibitied.

Issue: Does Congress have the power to incorporate a bank?

Holding: Among the powers Congress has, there is no mention of establishing a bank or creating a corporation. But there is no phrase excludes incidental or implied powers. Not everything granted shall be expressly and minutely described. A corporation is not prohibited from being created. A corporation may be employed, indiscriminately with other means, to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank if required for its fiscal operations. The prosecution of its fiscal operations is not now a subject of controversy. The act to incorporate the Bank of the United State is a law made in pursuance of the constitution, and is a part of the supreme law of the land.

Class Notes (Part I)
-Federalism type of issue.
-Principle: This is a government of limited powers.
-**If you have an issue, and the Federal government does something, first question you ask is what is the source of power the Federal Government is operating under.
-**Look at:
2. History (original meaning)
3. Structure: Argument based on how things work.
4. Precedent
1. Tradition: Things that have happened outside of precedent. Here, the bank has been a good tradition. The bank previously expired and it was brought back.
Consensus
Consequences: Policy

Challenger Defender
No enumerated power to Trust Congress: “pure and
Establish a national bank intelligent minds.”

Successful tradition of having a
National bank.
Everyone agrees it is a great thing.

The constitution permits implication