· Constitution isn’t legal
o Under Art of Confed. (1777) needed 13 state’s legislatures to agree
o Only got 9 under the constitution’s requirement
SCOTUS Power and Role
· Article III: created fed. Judiciary and defines power S. 2 cl. 2- maximum fed. SMJ
· SCOTUS has original jx over cases affecting ambassadors, other public ministers and consuls & those where a state shall be a party. Appellate jurisdiction in all others and only if the cases dealing w/federal law
· JUDICIAL REVIEW: power to review the constitutionality of fed or state laws & executive acts
· Marbury v. Madison: 1803: Authority of the court to decide that acts of C are unconstitutional
o Adams (federalistàstrong natl. authority; Lame duck) appoints John Marshall as Chief Justice (also current sec .of state). Federalist Senate passes Circuit Courts Act- 16 new appellate judgeships & Organic Act of D/C/ (4 judges don’t get commission)
o Jefferson (Republican) takes office and refuses to deliver them
§ (1) Marbury has a right to the commission- commission complete when Sec of St affixes it
§ (2) The laws afford him a remedy. Delivery of commission not strictly in the domain of the executive. If it was purely executive then the commission would not be a legal right.
§ BUT the Supreme court CAN’T grant the remedy he sought
· The Judiciary Act of 1789 granting them permission to hear the case was unconstitutional. Attempted to confer more than the Constitution allows
· If court deferred to C the constitution would be no different than a normal statute
· Case dismissed for want of jurisdiction
o OPPOSITION: public policy questions have been given to unelected body
o Executive decisions: federal courts can enforce his duty, but not when he acts with discretion
· Judicial Review And the States
o Fletcher v. Peck: Yazoo lands case. GA legislature repealed all the land grants that GA had given to people. The land grant owners went to federal district court claiming GA law violated the US constitution (contracts clause). US Supreme Court said that it did.
o Martin v. Hunter’s Lessee: 1816à S. Ct. authority to review judgments of state courts.
§ Question was when Virginia seized the land.
§ VA; once a case originates in state court, the case ends in the state sup ct.
§ SCOTUS: Section 25 of Judiciary act of 1789 expressly grants SCOTUS jx. when the state ct resolves a federal question. Not necessarily inherent.
o Cohens v. Virginia 1821: reaffirmed authority of SCOUS to review state court judgments.
§ VA claimed it was fundamentally inconsistent w/dual sovereignty for the state to be brought to court. NOPE
· Depth and breadth
o No way for SCOTUS to enforce their decisions
o Cooper v. Aaron, 1953
§ Reaffirmed Brown. Court decides what the law means and everyone is bound to adhere, not just named schools. State govts. must follow SCOTUS’s interpretation of US Const.
§ Jackson’s veto of bank bill. SCOTUS had decided that it was constitutional
§ Lincoln and Dred Scott (Congress lacks authority to control slavery in territories. Blacks can never be citizens). Lincoln refuses to apply decision to any other slave.
§ Gov. Faubus claimed that Brown only applies to the schools named in the lawsuit.
· Congressional Influence on the Judiciary
o The Exceptions Clause [Art. III S. 2 Cl. 2] Congress can make exceptions to SCOTUS’s appellate jx. (only the ceiling is listed in the Const.) “In all the other Cases before mentioned, the sup Court shall have appellate Jx, both as to Law and Fact, w/such Exceptions, and under such Regulations as the Congress shall make.”
o Ex Parte McCardle: McCardle is locked up under Reconstruction Act and files for writ of habeas corpus. Congress repealed the act of 1867 that gave the SCOTUS jx to hear the case. Congress didn’t want the Reconstruction Acts to be found unconstitutional.
§ Rule of Decision: Court not at liberty to inquire into the motives of the legislature [at the same time, congress can’t dictate to the court how to find in a pending case] § Dictating what precedent can be looked at raises concerns
· Is it ok to regulate the jx of the federal courts? Yes
· Does it violate the rule of proscribing the decision? No
o Regulate lower federal courts
§ (1) No clear text but [Art III s. 1] the great power to not have to create any lower fed cts gives C the lesser power to restrict them in ways much broader than the power to regulate SCOTUS. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish”
§ (2) Part of the historical understanding/compromise (to leave the making of fed. cts to C)
§ Article I, §8, clause 9 grants Congress the authority “[t]o constitute Tribunals inferior to the supreme Court.” Regulating the lower courts’ SMJ would seem to be a necessary & proper means to “constitut[ing]” those courts.
o Other means of Congressional control
§ Judicial selection: P nominates and Senate confirmation; Impeachment (Art. III s. 4); Court Packing/stripping; Constitutional Amend. Under article V; Browbeating through appropriations; Enforce the decisions
Federal court has the power to hear the question. The power of the court to speak.
· Prohibition against Advisory opinions from Federal Courts
o Art III cases and controversies: Must be concrete and non-hypothetical
o Separation of powers: judicial role limited to deciding actual disputes
o Look at the person who is doing the suing to see if they have standing even if discussing the D
o Standing is jurisdictional—must be satisfied and resolved before reaching the merits
o For a lawsuit to present a “case” or “controversy” within the meaning of Article III, the plaintiffs must have standing to litigate their case in fed ct. As stated in cases such as Lujan this means that the plaintiffs must credibly allege three things: (1) that they have suffered an injury in fact that is concrete and particularized, as well as actual or imminent; (2) that the injury in fact was caused by the allegedly unlawful conduct of D; and (3) that the relief sought will redress the alleged injury.
o Constitutional minimum:
§ (1) Injury in fact à invasion of legally protected interest
· Must be concrete/particular, [party seeing review must be among the injured] o Can’t sue as a tax payer who shares in common grievances
o Had more than “mere some day intentions,” such as those found insufficient in Lujan.
· Govt.: the alleged violation of the Act is an injury to the US’s sovereignty—an alleged violation of its laws—& is particularized to the govt.
§ (2) Causation: causal connection between the injur
for co-equal branches? Is there potential for embarrassing the nation?
Adequate and Independent State Grounds
· Michigan v. Long: If the MI const. was violated, then the SCOTUS wouldn’t have jx to hear the case. State Supreme Courts are the final arbiters of the state law. Now st law itself could violate the const. but no fed review of st law itself. There MUST be a federal question no matter who the parties are for SCOTUS to have jx.
· Basic Principles
o Ours is a government of enumerated powers: Congress must have express/implied authority to act from the Constitution. Enumerated Powers “all legislative powers herein granted shall be vested in Congress…” [Art I s. I] o States have residuary powers. Can do what they want, unless prohibited by Constitution. Only States have police power which allows them to adopt any law not prohibited by the constitution
· Art 1 s. 8 Outlines Congress’s powers
o Necessary and Proper Clause [art 1 s8 cl 18] “To make all laws which shall be n&p for carrying into execution the foregoing powers…”
o Allows C to select appropriate means once it has resolved that the objective in w/in C’s enumerated powers
· McCulloch v. Maryland 1819: Canonical statement about the breadth of the necessary and proper clause
o MD imposed tax on banks not chartered by state.
o (1) Does congress have power to incorporate a bank? YES
§ MD—compact theory—States are sovereign when they entered the constitution and can assert authority when they want.
§ Marshall—Sovereignty ultimately rests in people. People can bind the states and states can’t withdraw when they want.
§ “It’s a constitution we are expounding”
· It would be impossible to list all the accurate subdivisions of const. in its language. Must speak in broad terms.
§ Necessary and Proper Clause:
· Listed in the pwrs of C, not in the limits so it should naturally give more power than take away. C may choose any means not prohibited by the Const. to carry out its lawful authority.
· Necessary: some rational connection b/w the means and the ends
· Congress passes a criminal law that keeps ppl from vandalizing mail boxes. – not an enumerated power but N&P for power to establish post offices
§ Implicit in all constructions of Art. I. Explains the enumerated powers
o (2) Whether the state of MD may tax the branch? NO
§ States retain the power to tax generally
§ Lack of confidence: the electoral process is a check on how politicians use their pwr. Here the ppl of US are paying a tax from ONE state. No natural check on power of MD politicians.
§ No text- purely a structural inference and notion of federal supremacy. Can’t empower individual states to veto acts independently.