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Constitutional Law I
Rutgers University, Newark School of Law
Bell, Bernard W.

ConstitutiONAL LAW – PROF. BERNARD BELL                RUTGERS NEWARK – FALL 2013

Judicial Review

Marbury v. Madison—The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void.

Lochner—imposing values  VS.  Marbury—interpreting the law

Counter-majoritarian Difficulty—a perceived problem with judicial review of legislative laws. Some oppose or see a problem with the judicial branch's ability to invalidate, overrule or countermand laws that reflect the will of the majority.
Article III of the Constitution establishes the judicial branch of the federal government. 
Judicial Monopoly Theory—only the Sup Ct can interpret the cons. Constitutionality is a matter for experts. However, some con issues may not reach the courts.

Tripartite Theory—All three branches have the right and duty to interpret the constitution. You cannot separate policy from constitutionality.

1) Can Congress create administrative agencies to adjudicate? The most adjudication on the federal level happens at Social Security. Congress is allowed to create such agencies for some types of cases under Article I. These judges don't have lifetime tenure and salary protection like Article III judges.

Congress cannot create adjudicators without lifetime tenure and salary protection. There would be individual rights and structural issues. Individuals should be able to get an impartial judge who doesn’t suffer any consequences for his decisions.

CFTC v. Schor—An administrative agency may, in some cases, exert jurisdiction over state-law counterclaims. In considering a statute giving adjudication to administrative agencies, Congress will consider the tripartite structure and checks & balances. Private claims such as those in criminal law torts, contracts and property cannot be assigned to administrative agencies by the government. In the area of public rights, it is likely that Congress can create an Article I court—Social Security claims, Veteran’s Benefits etc.
There's usually a presumption by the courts that Congress didn't mean to preclude all judicial review (at least under all circumstances) by legislation.

2) What power does Congress have over the jurisdiction of Supreme Court and lower federal courts? The latter are statutory creations, so Congress can define jurisdiction for lower courts.

Article III, Section 2 carves out SC's original jurisdiction.

Ex Parte McCardle—Although the Supreme Court derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction. According to one analysis, there is a problem if Congress is constantly debilitating the Supreme Court from doing its job.

3) Does Congress have power to alter judgments entered by federal courts?

US v. Klein—Congress exceeded its power by invading the province of the judicial branch by prescribing the rule of decision in a particular cause. Congress also impermissibly infringed the power of the executive branch by limiting the effect of a Presidential pardon.

Congress creates the lower courts, but it cannot tell them how to rule. Klein cannot be really taken at face value, because Congress has to approve rules of civil procedure & evidence.

Jurisdiction of Federal Courts in Constitutional Cases

Martin v. Hunter’s Lessee—The US Supreme Court has appellate jurisdiction over state court decisions involving federal law.

The federal power was given directly by the people and not by the States. Article III, Section 2, Clause 2 of the U.S. Constitution states that “in all other cases before mentioned the Supreme Court shall have appellate jurisdiction”.

Fifty years after the Supreme Court handed down this opinion, it held in Ex Parte McCardle that while the Court’s appellate jurisdiction is subject to exceptions and regulations imposed by Congress, it is derived from the Constitution itself and not from acts of Congress.

Michigan v. Long—If there is not a plain statement that a lower state court’s decision rests upon adequate and independent state grounds and when the state appears to have rested its decision primarily on federal law, the Supreme Court will assume that the decision is in fact based on federal law.
The US Supreme Court cannot overrule a State Supreme Court ruling on a state issue. “Adequate (sufficient to resolve the case) and independent (not dependent or intertwined with federal law) state ground” means no federal law issue=no SC review.

Plain Statement Rule—the state opinion must contain such a statement that the references to federal law is only for guidance and the decision is really based on state constitution. If it's unclear, then the SC will assume it has jurisdiction.

1-Procedural—Must be subject to state court rules and procedural default. The state procedural rule has to be reasonable, it cannot be designed to prevent people from taking their case to the SC/pursue federal claims. Novel state procedural rules are treated similarly, not a sufficient ground to preclude federal review.

2-Substance—Michigan v. Long
Does any federal law preempt any state law?—The Supreme Court deals with such issues. State laws are reviewed by the Supreme Court of the State. When both laws are concerned we turn to the adequate and independent state grounds doctrine. If the case satisfies the doctrine, the Supreme Court doesn't review the case.


Is the person entitled to bring the claim he wants to bring?

Constitutional Minima:
–Injury in fact (concrete, particularized, actual and imminent)
–Relief can be granted

Constitutional minima is a must by Article III regardless of what Congress says.

–No 3rd party claims (Craig v. Boren—allowed 3rd party standing b/c the barkeeper was suffering an independent economic injury.)
–No generalized grievances (public interest, this is usually for elected officials on behalf on the public, not for individuals whose stake will not be any different from another taxpayer's)

Warth v. Seldin—The question of standing has two limitations:

1) A plaintiff must generally allege a specific “case or controversy” between herself and the defendant in order to have standing. In order for a federal court to have jurisdiction, the plaintiff himself must have suffered “some threatened or actual injury resulting from the putatively legal action.”

2) Standing will generally not be found when: a “generalized grievance” is shared in substantially equal measure by all or a large class of citizens a plaintiff attempts to claim relief on the legal rights of third parties.

Craig v. Boren—Th

ich only represents a segment of the people, cannot tax an instrumentality that belongs to all the people.

Gibbons v. Ogden—The commerce power granted by the Constitution (Commerce Clause of Article I) vests in Congress the plenary power to regulate commerce among the several states; and a state may not undertake to pass conflicting regulations violating Congress’ constitutional mandate.

US-Int’l, navigation or intrastate. Not purely interstate unless major burden on interstate. State inspection laws, health laws, and laws for regulating transportation and the internal commerce of a State fall within the state police power and are not within the power granted to Congress.

Cooley v. Board of Wardens—The Commerce Clause does not prohibit a city from mandating that local shipping be handled by local pilots.

Selective Exclusiveness—The Supreme Court held that Congress does not have the exclusive power to regulate interstate commerce. While many aspects of interstate commerce require uniform rules that apply nationwide, other aspects are highly dependent on local factors and are regulated by the states under local rules.

The Commerce Power

Categories of activity Congress may regulate (Lopez/Morrison):
1) The use of channels of interstate commerce
2) Regulation or protection of the instrumentalities of interstate commerce or persons or things in interstate commerce, though the threat may come from intrastate activities.
3) The power to regulate those activities having a substantial relation to interstate commerce

Wickard v. Filburn—If an activity has a significant impact on interstate commerce in the aggregate (regardless of P's personal growth for his own use), then that's sufficient to decide whether Congress has power over the activity. If a bunch of people grows wheat, it can have a destabilizing effect on the economy. This decision extended the interpretation of Congress’ powers.

Heart of Atlanta Motel v. US—Congress may regulate the ability of commercial institutions to deny service on the basis of race under its power to regulate interstate commerce. (14th Am. doesn't cover private discrimination.)

Katzenbach v. McClung—The Commerce Clause grants Congress the power to regulate local business activity if any part of it affects interstate commerce, if the aggregate of activity of that industry has a substantial effect on interstate commerce.

The court cannot decide whether the aggregate activity has a substantial effect on interstate commerce. They are only saying that it is rational to conclude so.

Conclusive Presumption—no rebuttal. In the late 1970s the court became more conservative and this had an effect on federalism.