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Constitutional Law I
South Texas College of Law Houston
Bergin, Kathleen

CONSTITUTIONAL LAW – Bergin Fall ‘03
I. Judicial Review
A. Article III
1. Federal courts may only exercise jurisdiction permitted under Article III of the Constitution
Article III Sect 2: Federal Judicial Powers
a) cases arising under constitution or laws of US, treaties (fed ?)
b) ambassadors, ministers, consuls
c) admiralty, maritime
d) cases b/w 2 or more states
e) cases b/w citizens of different states
f) cases b/w a state or its citizen and a foreign country or foreign citizen

2. Martin v. Hunter’s Lessee: SC has authority to review decisions of state courts only to extent that the decision was based on federal law. Even if federal law is involved in a case by a state court, if the state court decision is based on state law that is adequate for the decision and independent of federal law, the Supreme Court lacks power to review the case

3. Marbury v. Madison: SC has authority and duty to declare a congressional statute unconstitutional.

4. Sources of Judicial Power:
a. McCulloch v. Maryland: ( state tried to tax a federal bank for operation in the state) The states have no power to burden the operation of federal laws designed to execute powers vested in the federal gov’t by the constitution.
* Necessary and Proper Clause: the ends are enumerated in the constitution and the means necessary to achieve those ends must be permitted,
– allows for a federal bank as a means to carry out tax and spend power.
B. Article III limits courts to adjudication of “cases and controversies”(SOP)
– Purposes of Case and Controversy :
i. reduces friction b/w the branches produced by judicial review
ii. ensures that constitutional issues will be resolved in context of concrete disputes rather than hypos
iii. Constitutional decisions are rendered on those actually injured rather than those who want to impose their own public policy on gov’t

1. no advisory opinions – judicial review cannot be exercised in the abstract. Decision must end a real dispute between parties. The Dept. of Justice can issue advisory opinions for the executive b/c the Dept. of Justice is part of the executive and therefore isn’t overstepping it’s bounds.

2. Standing = status of being qualified to assert legal rights in ct b/c plaintiff has a sufficient stake in the controversy
a. Allen v. Wright: Parents of black students sue IRS for giving tax exemption to racist private schools.
Rule: Standing requires a P to allege a personal injury, fairly traceable to D’s unlawful conduct, and likely to be redressed by the requested relief.

b. Elements of Standing: (Art III now requires)
i. injury in fact= an invasion of legally protected interest which is concrete, particularized, actual, or imminent
Requires P’s Injury to
1) arguably be w/in zone of interests protected by statutory or
constitutional provision at issue
2) be particular, not shared by all or almost all citizens ( not too generalized)
ii. caused by the action complained of ( action of D must be but for cause)
– injury suffered must be fairly traceable to challenged action of D and not result of independent 3rd party not before the court
iii. that is redressble by the court

c. Nexus Requirement (Lujan): P must Show:
1) allegedly unlawful conduct has caused his or her injury in fact
2) injury is likely to be redressed by favorable decision
– nexus requirement not imposed outside of taxpayer context

d. Policies/Functions of Standing:
i. Ensure courts will decide cases that are concrete rather than abstract or hypo

assigned to legislature so not justiciable
2. No judicial discoverable and manageable standards for resolving the issue
3. If ct must decide policy Q better left to leg. or executive
4. Ct can’t undertake resolution w/o expressing lack of respect to other branches of govt
5. Unusual need for adherence to a political decision already made
6. The potential embarrassment of various pronouncements on a single issue from different branches
***You only need one to make it a political question; not a checklist.

3. Seeking protection of a political right does not mean it is a political question
4. Davis v. Bandemer: Claims of unconstitutional gerrymandering are justiciable b/c there was a judicially discernable and manageable standard by which cases could be decided
5. Nixon v. US: Fed judge was challenging impeachment trial.
Rule: The adequacy of the performance of a duty committed to another branch of govt, such as senate’s duty to try all impeachments, is a non-justiciable political question.

II. Federalism

EXAM TIPS for SOP – see if executive order is “making of law”, could be violation
– make sure law is “presented” to Pres. or Cong. violation
– Pres. committal of troops for repel of sudden attack (does not have power to declare war – 60 day limit)
– Appointment or firing of federal official (approval by congress) Congress can only remove by impeachment
A. Distribution of National Powers