ConLaw Spring 2011 Outline- Baher Azmy
Role of Supreme Court in Constitutional Order
Authority for Judicial Review
*Marbury v. Madison (1803)
Dispute between Federalists and Republicans over scope nat’l power and federal judiciary.
Three questions for the decision:
1. Was there a right to the commission? Yes, it vested upon the initial signature.
2. Does law provide a remedy? Every right needs remedy, foundation of civil system. If something political question- left to Congress because they can be voted out of office. This was writ of mandamus- deemed not political. Not going to intermingle w/ the judiciary- law clearly imposed on Madison to deliver; however, this establishes right of judiciary to review actions of executive.
3. Does Court have power to issue mandamus remedy? 1789 Judiciary Act unconstitutional- Article III provides original jurisdiction to limited areas.
Court has power to determine Legislation is unconstitutional; 5 arguments (2 structural, 3 text/logic):
1. Theory of Written Constitution: Legislature can’t alter Constitution w/o destroying supremacy.
2. Judicial Expertise: “emphatically province and duty of judiciary to say what law is.”
3. Article III delegation of judicial power; cases “arising under” the Constitution.
4. Oath to support the Constitution taken by all of Legislature.
5. Supremacy Clause: Laws subservient to the Constitution.
Marshall’s Strategy- Avoids Constitutional conflict; sacrifices Marbury (doesn’t get commission) for the greater goal of obtaining judicial review****
Federalist No. 78 Alexander Hamilton- Judges enforce People’s will via the Constitution. The Legislature can’t subvert their will or it will undermine popular sovereignty. Judges exercise judgment.
Judicial Review of State Court Judgments
*Hunter v. Martin’s Lessee (1816) (issues of dual sovereignty)
Hunter- claims land under state law; Martin- claims land under federal law
– Virginia courts refuse to obey the Supreme Court reversal of the State court ruling.
Virginia argues dual sovereignty- Article III doesn’t expressly mention review of State court judgments, therefore 1789 Judiciary Act unconstitutional.
à No dual sovereignty- Constitution abrogates vast amounts State sovereignty; Need Federal revision of States prone to jealousies or obstruction; Need for uniformity in interpretation of Federal law****
*Cohens v. Virginia (1821)
State courts interpretations of federal law subject to federal court review; State courts less reliable, political pressures and a federalist bias.
à Supreme Court can only review State court decision on Federal law****
– If States provide, “independent and adequate state grounds” for decision, can insulate from review.
Political Restraints on the Supreme Court
*Ambiguity to Marbury- whether other branches must accept the Supreme Court’s interpretations?
Narrow Holding: SC can’t enforce unconstitutional laws that come before it.
Broad Holding: Judges have superior interpretation, exclusive about what Constitution says; Fed. No. 78- “peculiar province” of courts.
*Cooper v. Aaron (1958)
Arkansas governor doesn’t comply w/ desegregation order- doesn’t believe “bound” by SC’s interpretation.
à SC expands Marbury; all gov’t officials must follow this Constitution (as interpreted by SC!)
*Dickerson v. United States (2000)
Congress attempts to overrule SC’s Miranda ruling but SC holds Congress can’t alter Constitutional rulings of SC!
Advantages/Disadvantages of Judicial Review:
– Huge abrogation of power to the Judiciary- Cooper/Dickerson propose that neither States nor Congress can ignore/overturn a decision of SC, even if vigorously disagree.
– Amendment of Constitution still possible to change rulings, but very difficult to do
Political Checks on Judicial Power
Appointment process (by the Executive for SC)
Impeachment (though only for crimes and misdemeanors)
Court Packing (It’s the size of the Court, not the salary (can’t be reduced), nor the motion of the ocean)
Jurisdiction Stripping (Ex Parte McCardle- “Exceptions” allow Congress to create exceptions to Court jurisdictions in specific cases- permit Congress to strip SC of jurisdiction over a pending case!
– Article V Amendment Process- Requirements pgs. 29-30
– Amendments to overturn specific SC rulings have only occurred 4 times in U.S. History!
Constitutional and Prudential Limits on Judicial Review
Article III and Case or Controversy Requirements
*There’s a general provision on the Court’s issuing advisory opinions to other branches (some State Supreme Courts are authorized to do so though).
– Why would we not want Courts to do this? (Policy!)
1. Separation of Powers
2. Limited Resources for the Courts (make the best use of them- decide actual cases/controversies)
3. Article III “Cases or Controversies” à Affirmative grant of power, thought not to apply to anything but a case or a controversy, i.e. you need a ‘versus’ in there.
4. Better Judicial Decision-Making
Standing- Which is the right party to bring the case; when is the appropriate time to decide it.
***Is this the right party to litigate???
Elements:
1. Injury in Fact- “Concrete & Particularized” to P, cannot be hypothetical, need not be financial.
2. Causation- Harm have or will suffer fairly traceable to D’s actions.
3. Redressibility- Could the harm have or will realize be resolved by a decision of the Court?
Prudential Concerns (not Constitutionally required but Courts generally observe):
1. No 3rd Party Standing (only very limited circumstances; “associational standing” w/ corps.)
2. No generalized grievances, must be specific
Rationales for Standing requirements (?)
Injury in Fact Examples (Sierra Club v. Morton???)
*Lujan v. Defenders of Wildlife (1992)
– No Injury in Fact- only allege “general intent”, fails the imminence requirement; no proof of concreteness of injury (would having already bought plane ticket work/be enough?)
– No Redressability- Even if Court issued regulation, animals would still likely not be preserved; too many other parts/foreign orgs.- projects would still continue anyways and animals die.
Procedural Injury- In many statutes, private parties given standing to sue by Congress, if agency not complying w/ statute. However, this does not override Constitutional (Article III) reqs. of Standing!
*Massachusetts v. EPA (2007)
Is this consistent with Lujan? Good comparison because doesn’t match up really.
Injury in Fact- Imminence a problem since will only be harmed in distant future, however, seems inevitable that the harm will occur.
– Majority says that the harm that will occur is imminent even if the full manifestation is distant.
Causation- Huge problem as well according to dissent; perhaps EPA not regulating emissions causes this; however, what about the hundreds of other potential causes for recession of coastline?
Redressability- Since there are other causes, MA coastline will be harmed regardless of what Court rules and EPA subsequently does.
– Majority believes that incremental harm by agency lack of action enough to satisfy the causation and redressability reqs.
à Definitely need to compare to Lujan, very divided court, raises a lot of concerns as to 3 elements!!!
*ACLU v. NSA (Handout)
Illustrates problems w/ Standing for secret programs- we even assume the program is unconstitutional/illegal for purposes of standing.
– However, parties can claim they are more likely to be surveyed due to their activities, but nearly impossible to prove direct injury/harm.
– Redressability difficult as well; even if Court rules unconstitutional and stops program, does that undo the harm already done with these parties’ subjects overseas?
Ripeness- Is the case too soon to be brought? Has an injury actually occurred yet?
Mootness- Is the controversy over/too late? If remedy already granted or person can no longer receive remedy from it (i.e. dead).
– ***Major exception= “capable of repetition yet evading review” à i.e. Pregnancy!
à Difference between damages and injunctive relief***
Political Question Doctrine (Justiciability!) Are there reasons Court shouldn’t review something?
– Look for “textually demonstrable commitment” to coordinate branch
– “irksome” and “delicate” issue- avoiding insulting coordinate branches
– Remedy is political- vote out actor (not legal)
*Baker v. Clark (1962)
Is this political question? Obviously in a way, it involves politics for sure. It’s not about whether it involves politics; it’s about if the Constitution tells us another branch of gov’t should control this issue without interference from the judicial branch***
– Anytime question of judicial review of foreign affairs/national security/etc; very strongly suggestive of a “political question” case.
*****à 6 Factors (pg. 51) for whether or not something is a “Political Question”*****
1. Does text of Constitution reveal this particular action meant to be done by the President or the Congress? (e.g. Appoint justices, pardons)
2. Can’t really point to criteria to resolve, too open-ended.
à These first 2 criteria are the 2 most important by far, they are always in play. They are Constitutional, next 4 are Prudential.
3. Anything where the Court would be making policy decisions.
4. Deciding something and showing improper respect for other branches of government.
5. Government needs a uniform voice; kind of linked with #6.
à In this case, dealing w/ State actor, not coordinate branch; no potential embarrassment; judicially manageable standards exist “one person one vote”
– Stunning because the Supreme Court telling dozens of States, we believe you have to re-do your Legislative systems!
à
s in Constitution, there’s definitely different degrees and it’s already evidenced in the Constitution itself!
– Term is “necessary and proper” and would be redundant if Maryland’s interpretation was correct; the Constitution does not use “surplus-age”, every word matters.
à #2: Maryland power to tax federal bank? NO!!!
– The Federal Government would have no political remedy against the State if they could tax. If the State taxes its own people, can vote them out of office; cannot do so with the Federal government towards State, no remedies for people from other States answering to the Federal government then. ***Maryland is essentially taxing citizens of every other State then from their State legislature.
– Why can the Federal government tax Maryland then? Maryland is represented in the Federal government, so they can vote out the people who voted for that tax; it’s about remedies then???
So what is Federalism good for?? (Arguments for and against) (Policy!)
Commerce Power
Early Interpretation of Commerce Clause:
– Is the activity commerce?
– Is the activity truly among the States or internal?
– What is the role of the tenth Amendment?
The Federal license is invalid because it can only regulate commerce and the federal government doesn’t have the power to give you a license, not valid use of the commerce power.
– Commerce would limit to buying and selling goods (trafficking)- this is NY’s argument.
Marshall says it’s more than that, it includes navigation! (among other things)
Three Periods:
1. Late 19th Century-1937 à Supreme Court takes fairly narrow view of Congress’ power under the common law. It struck down a number of federal laws that Congress attempts to pass under the Commerce Clause as Unconstitutional. The Court used very technical kind of reasoning. They define “commerce” very narrowly, all kinds of divisions of commerce. Court proposed a strong theory about the 10th Amendment, stood for protection against intrusion into State sovereignty. This lasted until the New Deal crisis. 1934-37 Court struck down a bunch of New Deal reforms passed by FDR in response to the Great Depression. The Court argued that Congress did not have power under the commerce clause to regulate all facets of economy. FDR went to war with Court, accused them of being antiquated and political.
2. 1937-1995 à Court changes its mind and concludes that all of economic reforms are Constitutional, permissible under the Constitution (1937). Court took extremely expansive and deferential mood to anything Congress wanted under the Commerce Clause. It simply let Congress do what it wanted to do.
3. 1995-Present à For the first time in 60 years, it strikes down Federal law as exceeding the Commerce Clause. We’ll talk about why that happened and what that means to the current age.
*Gibbons v. Ogden (1824) (Marshall’s Expansive Interpretation)
– Competing Federal and State navigation rights.
– Commerce= Intercourse (broader than navigation)
– Purely internal affairs left to the States; Congress can regulate internal affairs that affect other States though. Power complete (plenary) within sphere???
*Commerce Clause*- most frequently at issue today and most frequently used in justification of things.
· What counts as commerce?
· What does, “among the States” imply? Does it permit Congress to regulate the internal affairs of a State or only trafficking between 2 States?
· What is the role of the 10th Amendment in this? Narrow or broad?
Early 20th Century Cases:
* United States v. E.C. Knight Co.
Indirect v. Direct Effect Test! = Court says manufacturing something that takes place before commerce; it may have something to do with commerce but it’s indirect.
à If you permit Congress to regulate in this area, they could regulate almost every other local area, this had been left to State law, you would hurt 10th Amendment values here if did that.
