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Constitutional Law I
South Texas College of Law Houston
Alfini, James J.

Constitutional Law
Spring 2018
I. Supreme Court Powers
Power of Judicial Review: federal courts are charged with saying what the constitution means – power of courts to declare acts of government or government actors unconstitutional, invalid according to how courts interpret the constitution
Power comes from the text of the constitution (Article III), history surrounding adoption of text, structure of constitution, purposes and policies of provisions, judicial precedent
Article 3 of constitution identifies the kinds of cases the Supreme Court can hear as part of its original or trial jurisdiction
Marbury v. Madison: established courts power of judicial review
Facts: Marbury (P) was an intended recipient of an appointment as justice of the peace granted at the very end of Pres. Adams term. Marbury applied directly to SCOTUS for a writ of mandamus to compel Madison (Jefferson’s Secretary of State), to deliver the commissions under Judiciary Act of 1789, Madison/Jefferson refused, Marbury said Act gave SCOTUS OJ over case
Judiciary Act of 1789 granted the Supreme Court original jurisdiction to issue writs of mandamus “…to any courts appointed, or persons holding office, under the authority of the United States.”
Holding: SCOTUS said no jurisdiction under Act à Article III did not permit original jurisdiction over this case
Article III §2 states SCOTUS has original jurisdiction in cases involving AMC and where state is named party, appellate review is granted in other cases, and “under such regulations that congress shall make” – Exceptions Clause
Marshall narrowly interprets EC stating Congress cannot freely alter categories, therefore §13 is unconstitutional, Congress cannot expand scope of SCOTUS OJ
Judicial Review of Executive Conduct Test
In declaring Madison’s refusal to issue assignment unconstitutional, holding established SCOTUS power to review cases when president does not have exclusive discretion
Marshall’s defense of Judicial review: prevents E & L from exercising unlimited power, Article III, §2 gives SC power to hear cases under constitutional law
Fundamental Propositions:
Only the constitution is fundamental law, superior to and prevails over ordinary legislation and governmental acts
It is up to the courts to say what the law is and what the constitution requires, prevents E & L branches from exercising unlimited power
Ex Parte McCardle
Facts: newspaper writer brings habeas corpus proceeding to SCOTUS, Congress passes act repealing SCOTUS appellate power under Act of 1867
Holding: court lacks jurisdiction in cases where Congress exercises its power of exception
Principle: Congress may not interfere with the fundamental role of the Supreme Court to decide constitutional questions such that it would take away the special function of the Supreme Court of the US
US v. Klein (1872) – Cong. Interference w/ Exec. & Jud. Powers
Facts: Cong. provided after Civ War rebels forfeit prop to the US à created Court of Claims to det. title to the prop à Pres. Johnson offered pardon to rebels who agreed to take oath of loyalty à prop. would be returned
S. Ct.’s Initial Holding: Ct. of Claims had resp. to enforce Johnson’s pardons
Cong.’s Reaction: enacted stat. declaring accepting pardon à est. of guilt- instructed Ct. of Claims to deny reest. of prop. to the rebels & -Supreme Court should have no jurisdiction on the matter. 
S. Ct. Stuck Statute:
Cong. can make exceptions app. jurisdiction of S. Ct but can’t prescribe result in a cause of action
nor can it change effect of a pardon, which is exclusive exec. power.
e.) Contrast with McCardle: here withdrawal of jurisd. held unconst.
distinguishable b/c Cong. trying to usurp the power of both branches undermine the pres.’ pardon power & the power of the Ct.
Cong. interference w/ power of jud. more egregious here b/c attempting a judicial act; rather than revoking pt of Ct.’s jurisd. dictating a case’s result
Authority to Review State Court Judgments
Martin v. Hunter Lessee
Facts: VA refuses to obey Supreme Court’s mandate that VA could not seize land based on federal treaty
Issue: Does constitution authorize federal courts to act directly upon state court rulings or are state courts the final judges?
Holding: Judicial powers, as enumerated by the constitution, extend to cases arising under the constitution and the laws and treaties of the U.S. SCOTUS does not have OJ, so that case must be reviewed under their appellate power
SCOTUS is last resort to 1) avoid state prejudices, interests…to the regular administration of justice 2) ensure a uniformity of decisions
Supreme Court’s judicial review authority over state court judgments
Strong textual argument that Supreme Court has review authority over state court cases in matters of federal law (Article III gives SCOTUS authority to hear all cases arising under the constitution)
Judiciary Act of 1789- provided for SCOTUS review of state court judgments involving federal law
Policy – want uniformity of federal law
Supreme court can reconcile/examine whether federal statutes conform to the constitution
Supreme Court can reconcile/examine whether state interpretation of federal law are correct or not
Cohens v. VA
Facts: Cohen brother convicted in VA for selling DC lotto tickets in violation of VA law
Holding: The court adopts the “Expansive View,” stating that the court has appellate jurisdiction over anything arising under the Constitution regardless of who the parties are
Principle: Federal judges are insulated from majoritarian pressures while state judges are generally elected for fixed terms, making them vulnerable to majoritarian pressures
Authority to Decide Constitutionality of State Court Judgments
Principle: when deciding if a statute can alter judicial interpretation, look to see if there is a constitutionally protected right, if within the constitution Congress must initiate amendment process
Limited reading of Marbury v. Madison suggests judicial review is a byproduct of a court’s duty to decide cases within its jurisdiction, broad reading is that courts are exclusively competent to consider constitutionality
Constitutional Limits on Adjudication – Cases and Controversy and Standing
“Case or Controversy” Requirement (Justicability)
Article III §2 cl. 1 – judicial power shall extend to a list of enumerated “cases and controversies”
Cases and controversies defined as concrete and real fight between adverse parties. Requires mootness, ripeness, and cannot involve a nonjusticiable political question (one that is left to the unreviewable discretion of another branch)
Doctrine of Standing: whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues
General rules: Does P have sufficient take or interest? Must show 3 things:
Injury in fact: must have suffered direct and personal harm, distinct and palpable, can’t be harm to someone else or harm in general (can be intangible such as vote dilution or loss of opportunity) (Lujan)
Proof of Causation: places burden on P to show that harm is “fairly traceable” to the government (Allen)
Redressability: courts order must be able to resolve the problem (Massachusetts)
Lujan v. Defenders of Wildlife (Scalia)
Facts: challenge rule promulgated by Secretary of Interior interpreting ESA to actions applicable only in US
Holding: more than a cognizable interest is required, C or C requires that party seeking review must himself be among injured, P in this case had vague intention to visit place where the animal may no longer be existent, not enough
Massachusetts v. Environmental Protection Agency (Stevens)
Facts: group of states allege EPA has abdicated its responsibility under Clean Air Act to regulate emissions of four greenhouse gases
Holding: MA case has standing, not justiciable with political question, advisory opinion, or mootness
Statutory right as injury in fact – see below
Statutory/citizen suits require “zone of interest” – people that Congress intended to protect in enacting statute, example of bank having to give receipts to everyone – still must satisfy injury in fact
Principle: when congress has provided a procedural right to protect a concrete interest (right to challenge agency), the litigant can assert the right without redressability as long as there is some injury
Allen v. Wright
Facts: claim

ree Exercise clauses of the First Amendment of the Constitution
Holding: Taxpayer standing is appropriate when the plaintiff challenges an enactment under the taxing and spending clause of the Constitution and the enactment exceeds specific constitutional limitations on taxing and spending.
Very narrow holding, generalized grievance doctrine, suit has to be against or law enforced by Congress under spending power, involve real money, injury was lack of support of a religion
Political Questions: Is there a demonstrative commitment in the constitution that allocates powers to another branch of the government preventing the court from hearing the case?
Principle that some matters are
 unreviewable discretion of political branches;
some otherwise legal questions should be left to other branches of government
Baker v Carr (Brennan)
Facts: Tenn. Voters claimed violation of equal right protection because the appropriation of representatives had not been changed
How do you determine if it is a political question?   
Does the issue implicate separation of powers? Important threshold question
Does the constitution commit the resolution of the issue to either the President or Congress?
6 Factors for political question determination
Textually demonstrable constitutional commitment of the issue to a coordinate political dept
Lack of judicially discoverable and management standards for resolving it
Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion
Impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government
Unusual need for unquestioning adherence to political decision already made
Potential of embarrassment from multifarious pronouncements by various dept on one question
Zivotofsky v. Clinton:
Secretary of State Clinton argues that political question prevents the S.Ct. from weighing in on the issue. Alleges that allowing US citizen born in Jerusalem to have that listed as their place of birth on passports would make a two-state solution between Palestine and Israel in the future difficult to resolve. It was an argument over whether it should read “Jerusalem, Israel” or “Jerusalem” on the passport.
Rule: There is no political question here. The court is merely being asked to construe a statute passed by Congress
Distinguishing legal from political questions:
Powell v. McCormack (congressional qualifications) – issue justiciable because article I only committed decision of three qualifications to house, Powell’s assertion was based on finding of wrongful diversion of funds
Goldwater v. Carter:
Facts: President Carter terminated a treaty with Taiwan without Congressional approval
Holding: whether or not a president can terminate a treaty closely involves his foreign relations authority and is therefore not reviewable by the supreme court à political question, not justiciable
(Judge)Nixon v. United States (impeachment proceedings)
Facts: Nixon claimed Senate impeachment hearings against him were unconstitutional because the entire Senate did not try him, instead appointed a committee to make initial findings
Holding: nonjusticiable case, political question, textually sole authority of Senate
Prudential – lack of finality of difficulty of fashioning relief