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Constitutional Law I
Rutgers University, Newark School of Law
Payne, John M.

Con Law OutlineFEDERAL POWER GENERALLY:In our federalist system, national and state gov’ts co-exist.  The three branches can only assert powers specifically granted by the C.  You must watch whether some power asserted by the fed’l gov’t is in fact allowed under the C, and watch whether some power asserted by the states is limited in favor of fed’l power. Ask: “what is the enumerated power in the C that gives the fed’l branch the right to do what it has done?”I. JUDICIAL REVIEW:  Definition:  Doctrine that provide state and federal courts the power to invalidate Congress’s or Executive’s action that is contrary to the Constitution.A) Article III, Sec. 2 Grants judicial power to the Supreme Court and inferior federal courts to say what the law is.  However, “jurisdiction is made subject to exceptions and regulations as Congress from time to time shall make. “a) Types of cases that can go directly to the Supreme Ct under Art. III, Sec 2:1. Federal question – C, treaties, law of US. (not until 1871).2. Diversity jurisdiction – dispute b/w citizens of diff’t states.3. Admiralty cases4. Cases b/w state/ citizens and foreign country/ citizen.It’s the case, not the controversy that determines SC’s jurisdiction.b) Review of Federal Action:  Marbury v. Madison (1803) – Marshall i. Facts:1. Marbury was appointed and confirmed as a judge the day before the Adams administration came to a close2. The new administration refused to deliver the commission3. Marbury sued Secretary of State Madison directly in the Supreme Court for a writ of mandamus. ii. Theoretical underpinnings of the decision:1. Words in the Constitution must have an affirmative meaning2. The Constitution is the supreme law of the land3. Any act of Congress which conflicts with the Constitution is not a valid law:a. §13 of Judiciary Act of 1789 – “Sup. Ct. shall have exclusive jurisdiction of all controversies of a civil nature…also have appellate jurisdiction from circuit courts…power to issue writs of mandamus” – is contrary to the Constitution.4. It is the job of the Supreme Court to state what the law is5. Based on the above presumptions, the Supreme Court may declare a law unconstitutional iii. Holdings:  § 13 of Judiciary Act of 1789 unconstitutional.1. Marbury had a vested right in the commission2. Writ of Mandamus was a proper remedy for Marbury3. Because the act establishing the Supreme Court’s original jurisdiction for this trial was unconstitutional, the above two points were moot as the Court could not decide the caseI: Does the Supreme Court have original jurisdiction to hear this case? NO. H: Marshall declines to enforce it, and therefore Marbury doesn’t fall w/in jurisdiction of the Supreme Court and he loses.  Decision based on: (i) Written Constitution – can’t allow legislature to write laws that contradict the Constitutionn; (ii) Law w/ limits (checks/ balances, etc.); (iii) Principal supremacy of C over statutory law.   C trumps statute!!!Note:  Doctrine of Judicial Review applies to executive action except when Executive has legal or constitutional discretion.c) Review of State Action:  Martin v. Hunter’s Lessee  (1816) – Justice Story iv. Facts:  Treaties of 1783 & 1794 prohibited Virginia from seizing land owned by Great Britain.  VA Court of Appeals held contrary to treaties.  Supreme Court reversed.  VA Court of Appeals refused to obey Supreme Ct – it claimed that Section 25 of Judiciary Act was unconstitutional.1. Section 25 of the Judicial Act of 1789 gave the Supreme Court the power to review the decisions by State Supreme Court when the decision:a. Invalidates a treaty or statute thereof of the United Statesb. Involves favoring of state law that was repugnant to the Constitution or federal law.c. Involves any clause in the Constitution, federal law, or national treaty and the decision violates that provision – applies to this case. v. Theoretical underpinnings of the decision:1. The Constitution creates a Supreme Court and gives Congress the discretion to create lower courts.  2. Article III § 2 Clause 2:  granted Supreme Ct original jurisdiction over cases involving ambassadors and diversity of citizenships.  It also granted appellate jurisdiction over all other cases in Constitution.3. Supremacy Clause of Article VI establishes that US Constitution “shall be the supreme law of the land…shall bound anything in constitution or laws of any state to the contrary notwithstanding.” vi. Holding:  Virginia could not ignore the Supreme Court’s decision.  1. Appellate power of SC extends to cases pending in state court. Sec. 25 of FJA (1789) 2. Rule: When the state courts decide federal c’l questions, the SC has appellate jurisdiction under Art. III, §2 over such decisions.  It’s the final word!!! Note:  This case extended Supreme Court jurisdiction over the states and gave uniformity in the federal constitution interpretation.  One law of the land.  Otherwise, too many interpretation of the law will erode federal power and create problems.Cohens v. Virginia:  (1821)  p. 29 VA Lottery ticket law conflicts with fed law.  Marshall held that state criminal cases like state civil cases came w/in appellate jurisdiction of Supreme court.  d) Mechanisms to balance power of judicial review:(1) Political question doctrine (Baker v. Carr) – based on three criteria.(2) Exceptions and Regulations clause (Art. III, § 2) w/c gives Congress the power to take away jurisdiction that it thinks the court will exercise unwisely. (Ex parte McCardle).(3) Standing – (Art. III) (Baker) power of fed’l courts extends to “cases and controversies.” This has also been read to mean that party presenting the case must have a legitimate stake in that issue.(4) 11th Amendment – suits b/w individuals and states.  Cong adopts language that has been interpreted as a sovereign immunity doctrine (state’s autonomy).a) Prohibits fed courts from hearing private party’s or foreign gov’s claim against a state government.  Exceptions: i. Action against state officers; Actions that enjoin officer from future conduct; Action that violates Constitution or fed law ii. State consents iii. Congress removes the Immunity iv. §5 of 14th allow congress to provide relief to violation of 14th.(5) Mootness – doctrine originally used to decide a case has now become moot.(6) Discretion (at appellate level) – SC doesn’t have to hear most cases (only those it chooses).(7) Ripeness – is the country ready to deal w/ this issue?B) LIMITATION ON JUDICIAL REVIEW:The “Exceptions Clause” (Art. III §2) – SC has appellate jurisdictions “under such regulations as Congress shall make.”a) Ex Parte McCardle (1869) C. J. Chase: o Facts:  McCardle (editor) was arrested for criticizing the military and appealed under Habeas Corpus Act of 1867.  o Holding:  Cong passes a statute repealing habeas corpus (SC can no longer hear writs of habeus corpus).  Appeal denied. Article III provided that “Supreme Court shall have appellate jurisdiction…with such exceptions, and under such regulations as Congress shall make.”o RULE: Congress has the right to w/draw jurisdiction of SC in a case pending b/f it.b) Ex parte Yerger:  (1869) – case suggested limits on McCardle.o Facts:  Yerger was being held for

resentatives impeached Walter Nixon, a federal court judge, following his conviction and imprisonment for making false statements to a grand jury. Part of the Senate delegated most of its duties to a committee which reported to the rest of the Senate. Nixon brought suit on the grounds that the entire Senate should have taken part in his evidentiary hearing The district court dismissed the case, ruling it a non-justiciable political question Issue: Is the claim that Rule 11 violates the Impeachment Trial Clause “justiciable?”  NO.  Holding: This is non-justiciable PQ b/c the Constitution has given Senate, not the courts, the sole power to try impeachment. (Art. I § 3 Clause 6- textual commitment strand of Baker v. Carr).  Commitment to another branch = non-justiciable PQ.(2) Lack of judicially discoverable and manageable standards for resolving it. (Choosing method of drawing voting per district non-judicial function)Powell v. McCormack – (1969) Facts:  House refuses to seat Clayton Powell for alleged “improprieties.”  Powell claims this is unconstitutional. Issue:  Can the SC hear this case?  YES.   Holding: this is not a PQ! Manageable judicial standards are present in this case as indicated by Constitution language itself.o Article I § 5 – “each house shall be the Judge of the qualifications of its own members”o Court found that Powell met all these qualifications (expressed in Article I § 2 – age, citizenship and residence). Justice White (concurrence):  Found different intentions of founders but same merits of the case. Justice Souter (Concurrence):  Court should give deference to other branches in matter such as this.Prudential Standards:(3) Impossibility of deciding w/out an initial policy determination of a kind clearly for non-judicial discretion. Court would need some direction from legislature about how to decide it. (4) Impossibility of a court’s undertaking independent resolution w/out expressing lack of the respect due coordinate branches of gov’t..(5) An unusual need for unquestioning adherence to a political decision already made. (don’t want to use case that decided on political question for precedent).(6) Potentiality of embarrassment by various dept’s on one question.(2) RIPENESS: A case isn’t ripe if it has not yet become sufficiently concrete to be easily adjudicated.a) Specific Threatened Harm – litigant must not have already suffered a harm; it’s enough that the litigant has reasonable probability of harm. b) Goldwater v. Carter (1979):  Justice Powello Issue: Is a President’s unilateral termination of a treaty a PQ? YES. o Holding: Case dismissed b/c PQ issue. o Rule: A President’s power to unilaterally terminate a treaty is a PQ since:(1) No Common law provision directly controls the issue (silence)(2) Political branches have adequate resources to decide the issue, and (3) Issue involves foreign affairs.