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Constitutional Law I
South Texas College of Law Houston
Kelso, R. Randall


Intro: History, Theory, and sources
Article 1: Congress (declare war section 8)
Article II: Executive authority (appoint justices, treaties, ambassadors, make the state of the union, commander & chief (section 2)
Article III- Judiciary (watchdog, court self policies & self-regulates
* 2 parts to the const: 1) the structural articles of the const, relation among branches,
2) Amendments (individual rights)
FIFTH Amendment- federal, congressional limit of power
FOURTEENTH- state due process

Marbury v Madison- Congress may not manipulate the jx set out in the const; const always prevails (article 6 supremacy clause- const & fed laws made in pursuance of const), and the courts are the ones that settle the conflict. (b/c the province of courts to say what law is).
This case begins the principal of judicial review. Review scope of const: text, structure, grants, limits, checks & balances, efficient law making, accountability/representation reinforcement, international law & natural law

Martin v Hunters Lessees- state court decided case can be appealed to the SC as well, states have concurrent jx. Article 3, section2: “all cases”. States are sovereign but the const binds them as well. The framers feared the state courts to be biased & thus concurrent jx with fed cts. Article III confers jx on subject matter, not on place it arose.
SC can review b/c state judges bound by const as well & WANT uniformity

Necessary & Proper Clause:
McCullough v Maryland- Article 1, section 8, N&P, this is granted in the section where Cpngress is granated power, Congress can enact legislation reasonably necessary to carry out its express powers. Supremacy clause (article 6), fed govt can bind the states through legislation. Art 1, section 9: limits on Congress, they are express & in the const omitted word express powers only. Court also worried about handcuffing the Feds.
10th AMEND: any power not given to feds, given to states (but have concurrent power sometimes), but the state of MD may not tax this bank to kill it.
Representation Reinforcement- if the people of US can not check the MD’s legislature action, it is unconst. (this is political accountability)

Calder v Bull- natural law v. the nature of the const, can argue natural law either side of the fence. Chase- natural law is the source of legit authority; Irdell- written const is against the position that courts ought to apply natural justice.
The courts are to take a rational approach to counter-balance the emotional decisions created in the democracy. The courts are there to protect the minority.

Ex Parte McCardle- Congress can confer and limit jx of the Supreme Court. (But they allowed this b/c there are still other avenues to get to the SC) (McCardle problem in the case where want to sue a govt official for saying God is a sovereign source, b/c no fed jx is allowed, only the state courts can hear those claims)

1) give advisory opinions (giving courts opinion on constitutionality b/f law passed; this is interbranch advising, and is not allowed b/c no case or controversy (art 3); executive can get advisories from lowers in the executive; Congress gets advice from its committees)
2) Plaintiffs must have STANDING
3) Can not hear moot/unripe cases
4) No Political Questions

I. Justiciability
A. Standing (injury, traceable causation, and redressability)- does the P have a sufficient interest in this govt. decision?
1. Allen v Wright (black parents sue IRS): can not have standing to simply ask the courts to tell the govt to follow the law. The P must have suffered a distinct, pa

m multiple decisions pronounced.
** even if one is present, the issue is non-justiciable***
2. Nixon v US- impeachment is for the Congress to check the judiciary can not check the check, this is a political question (SOP issue)

II. Distribution of National Powers
A. Presidential Seizures
1. argument btw keeping judiciary out of it, and allowing the elections to speak for themselves & favoring judiciary involvement b/c they know about SOP.
2. Youngstown Steel & Tube v Sawyer- Pres notified b/f and after of intent to seize the mills, btu did nothing. This is too far removed from Art 2 authority, do not get broad commander & chief b/c that is like giving him a N&P clause, and besides Cong has power to declare war & raise money for the military. Not allowed to seize private property for an emergency, or under any of his powers. (commander & chief, faithfully execute, emergency, and chief executive authority)
a. express/implied approval- executive at the peak of his power (fed statute or const says it is ok; challenger hre would have to say the statute is invalid.)à Pres always wants to be here!!
b. Silence- zone of twilight- no express or implied authority. FLEXIBLE test- somewhat related to his powers, president needs to be able to make quick actions. Maybe give pres benefit of doubt. Less power here, concurrent power maybe.
c. Express/Implied Disapproval- very little power, under great scrutiny by court b/c Cong disproved.