Select Page

Construction Law
Rutgers University, Newark School of Law
Gonzalez, Carlos

Constitutional Law, Carlos Gonzalez, Fall 2010

Separation of Powers
A. Article III and the Federal Judicial Power, pp. 1-126, plus edited versions of Perry
v. Schwarzenegger and Cuccinelli v. Sebellius posted to Blackbooard site.

Article III of the Constitution- creates the federal judiciary and defines its powers. Article III covers 7 important topics concerning the federal judiciary.
1. “the judicial Power of the U.S. shall be vested” which create the judicial system.
2. “in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish” Clause was entered due to a great disagreement whether there was a need for lower Fed. Cts.
3. Article III ensures independence of the federal judiciary by according all fed. judges tenure.
4. Article III sect. 2 defines the federal judicial power in terms of 9 categories of “cases” and “controversies”. 9 categories fall into 2 types of provisions:
1–authorizes fed. ct. to vindicate and enforce the powers of fed. gov’t. For example Fed. Ct. has the authority to decide all cases arising under the Constitution, treaties and laws of the United States.
2– authorizes fed. ct. to serve as interstate umpiring function, resolving disputes between states and their citizens. The sup. Ct. has the authority to decide controversies between 2 or more states, between a state and citizens of another state, between citizens of different states, and between citizens of the same state claiming land in other states.
5. Allocates power between Supreme Court and lower fed. cts. Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the S. C. is granted appellate jurisdiction, both as to law and fact, subject to “such Exceptions and under such regulations as congress shall make.”
6. Prescribes that trial of all crimes, except in cases of impeachment, shall be by jury. Furthermore, it requires that the trial shall occur in the state where the crime was committed.
7. Treason shall consist only in “levying war” against the U.S. or giving aid or comfort to the enemy and that no person shall be convicted of treason except on testimony of two witnesses.

1. The Power of Judiciary Review.

Marbury v. Madison

Established the precedent, for Supreme Court’s judicial review of legislature passed by the executive and legislative branch.

Martin v. Hunter Lessee

Established the precedent for the Supreme Court of the U.S. to review state court decisions.

Cohens v. Virginia

Established the authority for Supreme Court to review state court judgments even in criminal cases. John Marshall in his opinion wrote “in many States the judges are dependent for office and for salary on the will of the legislature.

Cooper v. Aaron

Established that Supreme Court is not limited to reviewing state court decisions; federal courts also have the authority to review the constitutionality of state laws, and the action of state officials.

2. Limits on the Federal Judicial Power

Unlike justiciability doctrines (standing, ripeness, mootness, political question) this check on Federal Court Power is legislative. Congress may limit federal court’s jurisdiction.
-Congress’s authority rests on the Article III of the Constitution: “Supreme Court shall have the appellate jurisdiction, both as to Law and Fact with such Exceptions and under such Regulations as the Congress shall make”

1. Congressional Limits Exceptions and Regulations clause
1. Article III of the constitution provides that the “Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make”

The Congress has the power to limit Supreme Court’s appellate jurisdiction and the jurisdictions of the lower court.

Ex Parte v. McCardle (Pro jurisdiction stripping; Sup. Ct. established that congress may strip its jurisdiction)
· Congress augmented Supreme Court’s appellate jurisdiction by passing legislature that prohibited the federal courts to hear the Habeus Corpus cases.
· The US Supreme Court found that the repeal of the Habeus Corpus Act meant that they did not have jurisdiction to hear McCardle’s case.
· US Supreme Court validated congressional withdrawal of the Court’s jurisdiction.
o Basically, the Court found that Congress has the power to not give jurisdiction to the Court for certain cases.
· Because the Court held it lacked jurisdiction to hear the case, they left McCardle’s argument about his 5th Amendment rights unanswered
· Since Congress withdrew jurisdiction to hear the case, McCardle had no legal recourse to challenge his imprisonment in Federal Court.
o McCardle could have brought the case again, basing his arguments on laws that hadn’t been repealed instead of basing them on the Habeus Corpus Act. However, the military let him go, so the case went away.
· In Marbury v. Madison, it was determined that the judiciary had the right to say what the law is. But this case says that maybe it’s only in cases where the Congress says the judiciary has the right to say what the law is.

3. Separation of Powers as a limit on Congress’s Authority

United States v. Klein (Although Congress may strip the SCOTUS of jurisdiction, it cannot do it by infringing on the power of the branches)
· President Lincoln issued a proclamation offering a pardon to any person who had supported or fought for the South, with full restoration of property rights, subject only to taking an oath of allegiance.
o Congress had passed a Statute in 1863 that permitted an owner of property confiscated during the war to receive the proceeds from the sale of the confiscated property.
· Based on the 1863 Statute and the President’s proclamation, Wilson took the oath of allegiance and honored it until his death in 1865. Klein, the administrator of Wilson’s estate, then applied, to the Court of Claims to recover the proceeds of the sale of property seized from Wilson.
o While the case was pending, Congress repealed the 1863 Statute.
· The Court of Claims, found that Wilson’s estate was entitled to the proceeds from the sale of his property.
· In 1870, after Wilson’s case was settled, Congress passed a new law that basically reversed what the 1863 Statute said.
o This 1870 Statute prohibited the use of Lincoln’s Presidential pardon as the basis for claiming sale proceeds, and further said that acceptance of such a pardon was evidence that the person pardoned did provide support to the South and was ineligible to recover sale proceeds.
· Armed with the 1870 Statute, the US appealed to the Supreme Court.
o The US argued that based on the 1870 Statute, since Wilson had accepted a Presidential pardon his estate was not entitled to the sale proceeds.
· The US Supreme Court found for Wilson’s estate.
o The US Supreme Court ruled that the 1870 Statute was unconstitutional because Congress had exceeded its power.
· The Court found that the 1870 Statute was an unconstitutional infringement on the judicial branch because it prescribing the rule of decision in a particular cause.
o The Court also ruled that Congress had impermissibly infringed the power of the executive branch by limiting the effect of a Presidential pardon.
· Basically, in this case the US Supreme Court said that one branch of government may not impair the powers of another (aka separation of powers).
o In this case, that means that Congress can’t impair the power of a Presidential pardon, or stop a court from deciding the law.

Plant v. Spendthrift Farm, Inc.
Supreme Court declared unconstitutional a federal statute that overturned a Supreme Court decision dismissing certain cases. Court ruled that actions based on securities laws had to be initiated within one year of discovering the facts giving rise to the violation and three years of the violation. Congress then amended the law to allow cases to go forward that were filed before this decisions if they could have been brought under the prior law.
· Supreme Court invalidated the new amended statute as violating the separation of powers. Courts reasoning was that Constitution gives federal courts the power, not merely to rule on cases but to decide on them. The federal power is one to render dispositive judgment. The new law overturned the decision of the court.

The case is decided based on the principle of finality and the need to ensure that federal court rulings are not advisory opinions. Although the Congress did not try to limit Supreme Court’s jurisdiction, this case is illustrative.

How to reconcile both cases Klein and McCardle: Congress may redefine SCOTUS appellate jurisdiction so long as it does not infringe on other constitutional provisions. In Klein, the congress infringed on executive power of pardon. In Plant, the congress interfered with court’s ability to issue FINAL JUDGMENTS.

Policy arguments and responses

Supporters of the jurisdiction stripping argue that this is an essential governmental check on unelected Supreme Court.
Opponent of jurisdictional stripping contend that it is undesirable to accord Congress the power to undermine Supreme Court decisions.


· CHECKLIST if judicial review applies

· Does the issue arise in a case or controversy before the court or is it in the posture of advisory opinion?
· Is the court confronted by a potential conflict between a law or executive action and the U.S. Constitution?
If yes, there is a case or controversy that Article III of the Constitution permits courts to resolve.
· Could a state court decide the case on state law groun

(2) The Plaintiff must allege that the injury is fairly traceable to the defendant’s conduct. CAUSATION
(3) Plaintiff must allege that court’s decision is likely to redress the injury. REDRESSABILITY
Causation and Redressability are separate and independent standing barriers (Allen v. Wright)

3 prudential standing principles:
(4) Party may ONLY assert only his/her own rights and cannot raise the claims for 3rd parties not before the court
(5) Plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers (similar to the citizen suits) ONE EXCEPTION EXISTS
(6) Party must raise a claim within the zone of interests protected by the statute in question.

Federal courts may raise the question of standing at any point in federal court proceedings.


Plaintiff must allege that he/she personally has suffered or will imminently suffer an injury. The injury or threat of injury must be both real and immediate, not conjectural or hypothetical.
· Ideological interest is not enough for standing
· When congress creates a right to information, withholding such information does constitute and injury.

Lujan v. National Wildlife Foundation
-Plaintiffs challenged the federal government policy which lessened environmental protection of certain federal lands.
– Two members of the National Wildlife Federation submitted affidavits that they used land “in the vicinity” of that which was reclassified and that the increase in mining activity would destroy the area’s natural beauty.
-The SC, however, said that this allegation was too general to establish a particular injury.

United States v. Hays
-SC held that only individuals residing within a district suffer an injury from how the lines for that district are drawn. “plaintiff who resides in a racially gerrymandered district has standing to challenge the legislature’s action. Anyone who resides outside lacks standing.

City of Los Angeles v. Lyons
-Plaintiff brought suit to enjoin as unconstitutional the use of chokeholds by LAPD, in instances where police were not threatened with death or serious bodily harm.
-Lyons was stopped for a broken tail light and subjected to chokehold although he presented no harm.
-SC ruled that plaintiff seeking injunctive or declaratory relief must show a likelihood of future harm. Even though Lyons could bring a suit seeking damages for his current injuries he does not have standing for injunctive (prohibiting police from future use of chokeholds) relief, since no guarantees that the chokehold will be used on him in the future.

Lujan v. Defenders of Wildlife
· Congress passed a law providing the “Endangered Species Act” does not apply to the US gov’t activities outside of the U.S. or the high seas.
· Plaintiffs claimed that such act increased the rate of extinction for endangered species.
· The Supreme Court expressly applied Lyons and held that plaintiffs failed to sufficiently show likelihood that they would be injured in the future by a destruction of the endangered species abroad. Simple fact that the plaintiffs had visited the places where the endangered species were does not prove that they will visit those places in the future. Concrete plans must be presented.

Allen v. Wright
Supreme Court declared that standing is “built on a single basic idea-the idea of separation of powers”
Black parents brought suit against IRS to ban the IRS granting tax exemptions to private schools. IRS actions promote segregation and that harms the plaintiff in
· Promotes and actually presents tangible financial aid and other support for racially segregated educational institutions
· Promotes segregations, whites get better education
Question: Does Plaintiff have standing?
Holding: No
Reason: To have standing one must have:
· Injury – distinct and palpable
· Injury was caused by the defendant
· Court’s decision will provide redress