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Constitutional Law I
Santa Clara University School of Law
Gulasekaram, Pratheepan

JUDICIAL REVIEW AND SUPREME COURT AUTHORITY
 
I.                    Marbury v. Madison
a.       Facts:
                                                              i.      Marbury filed suit in the Supreme Court seeking a writ of mandamus compelling Madison as Secretary of State to deliver the commission.
b.      Specific Holding:
                                                              i.      Supreme Court ruled against Marbury and held that it could not hear the case as a matter of original jurisdiction. 
c.       Reasoning
                                                              i.      Court asked three questions:
1.      Does Marbury have the right to the commission?
a.       Court said, yes, Marbury does have the right to the commission.
2.      Do the laws afford Marbury a remedy?
a.       The judiciary could provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion.
3.      Can the Supreme Court issue this remedy?
a.       Where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus.
b.      When it is a political question, such as whether to veto a bill or who to appoint for an office – are entirely within the president’s discretion and cannot be judicially reviewed.
                                                            ii.      Holdings:
1.      Congress cannot increase the Supreme Court’s original jurisdiction
a.       Article III enumerated its original jurisdiction and the Congress cannot enlarge it. 
2.      Supreme Court can exercise judicial review
a.       the people established a government of limited power, so Congress must not be the only reviewer of constitutionality of their own laws, otherwise there is the potential for unlimited power.
3.      Supreme Court can declare federal laws unconstitutional if they conflict with the constitution and can refuse to enforce it:
a.       Marshall argued that the Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement.
b.      The Court’s authority to decide “cases” arising under the Constitution implied the power to declare unconstitutional laws conflicting with it.
c.       Judiciary Act of 1789 unconstitutional à Judiciary act authorized the court original jurisdiction to hear writs of mandamus but it was unconstitutional because Congress cannot allow original jurisdiction beyond situations enumerated in the Constitution.
4.      Article VI makes the Constitution the Supreme Law of the land
 
                                                          iii.      Criticism of Judicial Review:
1.      Not explicitly stated in the constitution that the Sprm. Ct. is the ultimate arbiter.
a.       However, since the constitution is silent, it is more practical to have an ultimate arbiter, and that should be the Sprm. Ct. because they can protect the interests of the minority because they are not subject to political pressures.
b.      Also serves as a way to legitimize government in the eyes of the people by having independent review.
 
Cooper v. Aaron (Reiteration that Constitution is supreme law of land):
Holding: Supreme Court affirmed an Appeal court’s reversal of a postponement of a desegregation program. 
Arkansas had claimed that they were not bound by the holding in the Brown case because Arkansas was not a party to it. 
But the court reiterated that Article VI makes the Constitution the supreme law of the land and that interpretation of the 14th Amendment by the court in Brown is the supreme law of the land and Art. VI makes it binding on the States notwithstanding any thing in the Constitution or Laws of any State to the contrary.
 
 
 
LIMITS TO FEDERAL JUDICIARY POWER
 
Justiciability limits à Judicially created limits to federal judicial power
 
Political Question Doctrine:
Definition – the political question doctrine refers to subject matter that the Court deems to be inappropriate for judicial review. Although there is an allegation that the Constitution has been violated, the federal courts refuse to rule and instead dismiss the case, leaving the constitutional question to be resolved in the political process.
History:
Beginnings – In Marbury v. Madison the courts definition of political question was very narrow à included only were matters where the president had unlimited discretion and there was thus no allegation of a constitutional violation. For example, the president has the choice about whether to sign or veto a bill or who to appoint for a vacancy on the federal judiciary. Because the constitution vests the president with authority in these areas, there is no basis for a claim of constitutional violation no matter how the president acts.
Today – the political question doctrine now includes instances where individuals allege that specific constitutional provision s have been violated and that they have suffered a concrete injury.
Baker v. Carr
Holding: Supreme Court ruled that challenge by voters to the apportionment of the legislature in Tennessee did not present a political question.
Reasoning: 
In determining whether a question is a political question, the court should look to see whether the following.
I.        Whether or not the claim at issue was textually committed to the branch of the govt
a.       Something in the constitution that says that the legislature or executive should decide a particular action.
b.      Criticism – there is no place in the constitution that says that a legislature or executive should decide whether a particular action constitutes a constitutional violation.
II.    Lack of Judicially manageable standards
a.       Is there something in the constitution that would help the judiciary decide it.
b.      Criticism – Most important constitutional provisions are written in broad language and do not include judicially discoverable and manageable standards.
III.Prudential standard
a.       Even if a decision can be reviewed by a court, is there a prudential reason not to review it because it could create institutional chaos such as:
b.      The impossibility of a court’s expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political question already made; or the potentiality of embarrassment from multiple departments on one question.
o   Majority opinion: 
§ In Baker it is clear that none of these problems crop up if the court resolves the constitutionality of Tennessee’s present apportionment:
·         There is no question to be decided by a political branch of government coequal with the Court.
·         Nor is there risk of embarrassment of the government abroad or grave disturbance at home.
·         Nor are there a lack of judicially manageable standards.
o   Dissenting opinion – Frankfurer, Harlan
§ This is a political question because what the court is being asked to do is choose among competing theories of politics and choose an appropriate form of government for Tennessee.
§ The legislative apportionment process is a product of give-and-take and of compromise – considerations of geography demography, economic and social cohesions, ancient traditions, etc. These are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience.
 
o   Powell v. McCormack (Congressional seating)
o   Holding: 
§ Court ruled that a decision on whether Congress had a right to deny a seat to one of its members was not a political question and therefore was justiciable.
o   Facts:
§ House of Reps refused to seat Powell because they thought he was corrupt. He sued. Speaker of House said that the controversy was non-justiciable because Art I. §5, cl. 1 that each house shall be the judge of the qualifications of its own members constituted a textual commitment of the issue to another branch and therefore the controversy was nonjusticiable.
o   Reasoning:
§ Court said that Art 1, §5 was at most a textually commitment to Congress to judge the qualifications set forth in the Constitution. 
§ There were clearly judicially manageable standards here because Powell sought a determination that the House was without power to exclude him, which requires an interpretation of the Constitution – a determination for which there are judicially manageable standards.
 
o   Goldwater v. Carter
o   Holding:
§ Court ruled that a challenge to whether the President has authority to terminate a treaty without participation by the Senate was a political questin and therefore non-justiciable.
o   Reasoning:
§ Rehnquist claimed that the case was political because it involves the authority of the President and the conduct of our country’s foreign relations arguing that the controversy should be left for resolution by the Executive and Legislative Branches since the Constitution is silent as to the Senate’s participation in the abrogation of a Treaty.
o   Dissent
§ Powell concurred because he thought the issuew as not ripe. He thought the issue was not political under Baker v. Carr criteria – there was no textually demonstrable commitment of the treaty power to the President, nor was there any lack of judicially manageable standards.
o    
o   Nixon v. United States
o   Holding: Judiciary will not review the Senate’s use of a committee to hold a hearing and make a recommendation on an impeachment. 
o   Facts: Walter Nixon, a federal judge, who had been convicted of making false statements to grand jury. Refused to resign from bench. House adopted articles of impeachment. The Senate, in accord with its rules, created a committee to hold a hearing and make a recommendation to the full Senate. The Committee recommended removal from office and the entire Senate voted accordingly.
o    Nixon argued that the Senate’s procedure violated Art I, §3 of the Consitution, which provides that the Senate shall have the sole Power to try all Impeachments.” Nixon maintained that the entire Senate had to sit and hear the evidence; he contended that the use of a committee to hear testimony and make a rcommendation was unconstitutional.
o   Testual commitment to Congress – Rehnquist held that the language and structure of Article I, §3 demonstrate a textual commitment of impeachment to the Senate. The framers intended that there be two proceedings against officeholders charged with wrongdoing – a judicial trial and legislative impeachment proceedings. They deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments. Judicial review of the Senate’s trial would introduce the same risk of bias as would participation in the trial itself.
o   Secondly, judicial review of impeachment would be inconsistent with the framers’ views of impeachment in the scheme of checks and balances. The framers saw impeachment as the only legislative check on the judiciary; judicial involvement even if only for purposes of judicial review would eviscerate the important constitutional check placed on the Judiciary by the Framers.
o   Thirdly, in addition to textual commitment argument, there is the lack of finality and difficulty of fashioning relief that counsels against justiciability. Opening the door of judicial review to the procedures used by the Senate in trying impeachments would expose the political life of the country to months or perhaps years of chaos. There would be a lack of finality.
 
Categories which have been found to bear a political question:
Reapportionment cases.
Cases that deal with foreign affairs.
Congress’ ability to regulate its internal processes
Process for ratifying constitutional amendments.
Instances where the federal government cannot shape equitable relief
Impeachment process.
 
Reasons for political question doctrine
Enables the judiciary to avoid controversial constitutional questions and limits the courts’ role in a democratic society.
It allocates decisions to the branches of government that have superior expertise in particular areas:
§ For example – the court has probably rightly treated many constitutional issues concerning foreign policy to be political questions because of greater information and expertise of other branches.
Courts’s self-interest disqualifies them from ruling on certain matters:
§ For example ratification of constitutional amendments because amendments are the only way to overturn the Supreme Court’s constitutional interpretations.
Separation of powersà it minimizes judicial intrusion into the operations of other branches of govt:
§ For example a lawsuit that contended there were deficiencies in training of National Guard was deemed to be a political question because a remedy there would involve judicial control and supervision over the Guard’s activities.
 
Criticism of political question doctrine
Judicial review serves to uphold the constitution from majoritarian control.
The constitution was created to insulate it from majoritarian control. Thus Congress and Executive should not be entrusted to enforce any part of a document that was meant to restrain them. 
Judiciary that ducks controversial issues to preserve its credibility is likely to avoid judicial review where it is needed mostàto restrain highly popular, unconstitutional government actions.
Political question doctrine confuses deference with abdication
Example – many foreign policy questions do not involve matters of expertise but pose interpretive questions.
 
 
CASE OR CONTROVERSY
 
I.                    Intro to Justiciability
                                                              i.      They serve to put limits on the court so they are not really rooted in any specific dispute. 
II.                 Sources for doctrine
§ Constitutional – to determine whether or not a court has the authority to hear a c

ncertain.
b.      Army reservists – the court held that past and present members of the Army Reserves lacked standing to challenge the Reserve membership of certain members of Congress as violating the Incompatibility Clause.
§ There is also a procedural right or a procedural injury. πs are claiming that this is a citizen suit. Scalia claims that this does not pass muster. In this instance, this particular citizen-suit provision in this particular act is far too broad (a generalized grievance). Thus you cannot have a provision to have the ability to have every citizen bring a suit. Our roles in the courts is to decide the fates of individuals. Congress has gone too far with this particular statute à at the very least it has to identify a particular injury that the statute seeks to vindicate. It allows anybody/everybody to bring a particular suit. They are suggesting that there could be an instance where you have a statute which allows citizens to bring a suit, but does not allow all citizens to bring a suit at the same time. Ex: p. 66, FEC v. Aikenà Where the court is looking once again at the citizen suit provision. Esentially the court held that there was standing in this particular statute. Congress had created a right to information, and there was a particular way in which πs were injured. There was as sufficient nexus to allow this type of suit to stand.
                                                          iii.      Zone of interests: 
 
Lujan v. Defenders of Wildlife
Facts: group of πs harmed by the system. The court says that there is no injury. Why? Because it was so vague – they had no dates, etc. They were saying that it was only speculative. It has to be a real or imminent injury. They talk a little bit about having an ideological interest. It has to be somehow related to the
Real and Concrete Injury –
 
Redressability – US participation in any of these projects was not large enough to have any power. The harms that the πs complained of would likely still occur.
 
Cases since Lujan:
o   FEC v. Akins
o   Holding: A group of voters had standing to challenge the failure of the Election Commission to treat an Israeli-American lobby as a political committee. 
o   Reasoning:   Though the court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process may provide the more appropriate remedy for a widely shared grievance, where a harm is concrete though widely shared, the Court has found an injury in fact. Here, the informational injury at issue was directly related to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts.
 
o   Vermont Agency of Natural Resources v. U.S.
o   Facts: The court addressed the issue of suits under federal False Claims Act, which permits a private party to sue fraudulent government contractors in the name of the government. The private party then maintains his own interest in the suit and stands to win a personal pay-off if the government’s claim is successful.
o   Holding: the court ruled where the government’s alleged injury-in-fact would meet Article III requirements, the Congress could legislatively assign the claim for that injury to a private π who would then have standing according to the doctrine that the assignee of a claim has standing to assert the injury in fact suffered by the assignor.  
 
 
 
VI.              Mootness & Ripeness
§ Ripeness and Mootness deal with the timing of a lawsuit. They are essentially just an outgrowth of standing.
                                                              i.      A case is unripe if it is premature (it is not a live case or controversy).
                                                            ii.      A case is moot if it is brought too late.
§ Mootness
                                                              i.      Mootness cases involve litigants who clearly had standing to sue at the outset of the litigation; the problems arise from events occurring after the lawsuit has gotten under way.
                                                            ii.      With mootness, you have something that was once a case/controversy but something has happened that has changed the nature of ità parties have settled; Δ has gone out of biz; a party has died.
                                                          iii.      Mootness requires that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. The court has treated the doctrine as an aspect of the Article II case or controversy requirement.
§ Example: Cessation of past wrongful conduct might moot a claim for an injunction but not a claim for damages. So long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.
                                                          iv.      Exceptions to the mootness doctrine:
§ Capable of repetitionà Ex: Roe v. Wade – the π in the case in the case was pregnant when the suit was filed but had delivered by then. The particulars of the case were no longer there. But the circumstances were such that the court could see them happening over and over again. The court decided to still hear the case, because the particular case was capable of repetition.
When a Δ voluntarily ceases whatever caused the lawsuit – IF for whatever reason the Δ chooses to stop whatever he was doing, the court might still