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Constitutional Law I
South Texas College of Law Houston
Treece, T. Gerald

Constitutional Law Outline
Professor Treece
Spring 2009
Judicial Review:  
General Idea: the courts have the power to nullify (not just review) the decisions of the other branches of government.
Two ways to get to the Supreme Court:
1.      Original jurisdiction
a.       Limitations of the Exercise of judicial review 28 USCA 81 §1251
(a)    The Supreme Court shall have original jurisdiction of all controversies b/t 2 or more states
(b)   The Supreme Court shall have original but not exclusive jurisdiction of:
1.      All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
2.      All controversies b/t the United States and a State
3.      All actions or proceedings by a State against the citizens of another state or against aliens  
2.      Appeal – discretionary; only hear federal or constitutional issues (only about 100 a yr)     
a.       § 1254 Courts of appeals; Certiorari; certified questions
Cases in the courts of appeal may be reviewed by the Supreme Court by the following methods:
i.        By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;
ii.      By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision for the entire matter in controversy.
b.      § 1257 State Courts; certiorari
i.        Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any state is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States,
ii.       For the purposes of this section, the term “highest court of a State” includes the District of Columbia Court of Appeals.
2)      Origins:
a)      Marbury v. Madison: “Established Judicial Review”
i)        Rule of Law: The Supreme Court has the power, implied from Article VI § 2, of the Constitution, to review acts of Congress and, if they are found repugnant to the Constitution, to declare them void.  
(1)   Article VI § 2 – [Supremacy Clause]: This Constitution, and the Laws of the US which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the US, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
ii)      Facts: Outgoing President Adams appoints the “midnight justices”, one of which was Marbury. The commissions were signed but never delivered. New President Jefferson refused to deliver the commission. Marbury files for a writ of mandamus to get his commission.
iii)    ?- Does the Constitution give the SC the authority to review acts of congress and declare them, if repugnant to the Constitution, to be void? 
iv)    General Notes:
(1)   This case established judicial review.
(2)   SC won this case – d/n force Jefferson to do anything; Marbury was not waiting on his commission (it was a attempt to keep the Federalist in power).
b)      Cooper v. Aaron: “State Officials”
i)        Rule of Law: State officials may not refuse to obey federal court orders resting on Constructional grounds.  
ii)      Facts: The Governor and Legislature of AK refused to obey a federal court order to desegregate the public schools in Little Rock based on the Brown v. Board – said they had the right to wait until the case was appealed.
iii)    ?- May state officials refuse to obey federal court orders resting on constitutional grounds (segregation is unconstitutional)?
(1)   **only applies where the federal courts assert power from the constitution**
c)      Martin v. Hunter’s Lessee: “Judicial Review of State Court Decisions”
i)        Rule of Law: The U.S. Supreme Court has appellate jurisdiction to review state court decisions. (The SC has to independently evaluate state law to protect federal guarantees [Bush v. Gore])
ii)      Facts: (1816).The state of Virginia passed a law confiscating the land of all British subjects. This contradicted a treaty which guaranteed that the British subjects would keep their land. The VA court found that the US had no authority to bind them in such matters.
iii)    ?- Does the USSC have appellate jurisdiction over state court decisions.
iv)    Other Case Law: (Notes pg 24)
(1)   Cohens v. Virginia: “also applies to criminal trials” – Marshall, writing for the Court- Court also has jurisdiction to review state criminal proceedings. The 11th amendment d/n applies when suit was instituted by the state rather than by a noncitizen against a state, and that the fact that a state was a party to the suit was no objection to the Court’s exercise of its jurisdiction.
(2)   Indiana ex rel. Anderson v. Brand: SC reviewed a contract under the Contract Clause of the Constitution (Art I § 10.1) and
3)      Limitations on the Exercise of Judicial Review
a)      Statutory Jurisdiction of the Supreme Court
b)      Statutory Restrictions
i)        Ex Parte McCardle:
(1)   Rule: Although the SC derives its appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to the appellate jurisdiction.
(2)   Facts: McCardle appealed from a denial of habeas corpus to the SC, but congress passed an act forbidding the Court jurisdiction.
(3)   ?- Does congress have the power, under the Constitution, to make express power to the appellate jurisdiction of the Supreme Court? (Yes.)  
c)      Advisory Opinions
i)        Muskrat v. United States:   
(1)   Rule: The Constitution limits the authority of federal courts to cases and controversies and they may not issue purely advisory opinions.
(2)   Facts: Congress authorized an Indian tribe to bring suit to test the validity of a federal law.
(3)   ? – May federal courts issue advisory opinions as to the validity of federal laws where no actual case or controversy exists?  
d)      Political Questions
i)        Baker v. Carr:
(1)   Rule: A challenge by state officials of a claim based on a federal constitution ground does not present a nonjusticiable political question.
(2)   Facts: The State of TN failed to enact any reapportionment measure from 1901 until this suit, resulting in such wide disparity in the voting power of various countries that the majority of the state legislators were elected by a minority of voters, and this action was brought in federal court on the ground of denial of equal protection.
(3)   ? – Does a challenge by a state officials of a claim based on a US Constitutional ground present a nonjudiciable political question? (No.)
(4)   Other Notes:
(a)   Political Question – an issue that is more appropriately left to the determination of another governmental branch and which the court declines to hear.
(i)     Generally left to other areas of the government than the judiciary by specific constitutional language.
ii)      Powell v. McCormack:
(1)   Rule: A challenge to the power of Congress to exclude an elected member of Congress for misconduct is not a nonjusticiable political question.
(2)   Facts: Powell who was excluded from the 90th Congress due to his diversion of House funds, wrongful assertion of privilege, and falsification of expenditure reports, brought this action for a declaratory judgment and for back salary after his reelection to the 91st Congress.
(3)   ? – Is a challenge to the power of Congress to exclude an elected member of Congress for misconduct a nonjusticiable political questions? (no.)
iii)    Nixon v. United States:  
(1)   Rule: The Senate holds the sole power to try impeachments and the judiciary may not review the impeachment process.
(2)   Facts: Nixon, a district court judge who was impeached by the House of Representatives and convicted by the Senate, claimed that the Senate procedures violated the Constitution.
(3)   ?- May the judiciary review Senate impeachment procedures? (No.)
(4)   Other Notes:
(a)   This decision is an example of the so-called ‘political question’ doctrine for limiting judicial review. Under this doctrine, judicial review is inappropriate if there is a ‘textually demonstrable constitutional commitment of the issue’ to another branch of the government.
4)      Example Questions for final exam: Does the power of judicial review come from the Constitution or another source? Do you agree w/Marbury?
Rules of Justiciability:
1)      Standing
a)      The Requirement of Injury in Fact and Causal Connection
i)        Duke Power Co. v. Carolina Environmental Study Group, Inc.:
(1)   Rule: The test for standing requires both a distinct and palpable injury to the plaintiff, and a fairly traceable causal connection between the claimed injury and the challenged conduct.

cases which are moot.
ii)      Facts: DeFunis contended that the procedures employed by the University of Washington Law School Admission Committee violated the Equal Protection clause. At the time the case reached the SC, DeFunis was in his last quarter in law school, and the school indicated that it would not seek to abrogate his registration.
iii)    ?- Are federal courts w/o power to decide cases which are moot? (yes.)
iv)    Other Notes:
(1)   Federal Courts are w/o power to decide questions that c/n affect the rights of litigants in the case b4 them.
(2)   In a class action (unlike this case), the action will not be rendered moot so long as the issue is alive as to the class of person whom the names plaintiff has been certified to represent.
(3)   If it is “repetitious yet evading review” (such as abortion cases – the pregnancy is over by the time of the trial but it happens all the time) then standing will hold.
3)      Ripeness – courts c/n hear premature cases
a)      International Longsshoremen’s and Warehousemen’s Union, Local 37 v. Boyd:  
i)        Rule: Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.
ii)      Facts: The Union seeks to prevent Boyd, the director of INS, from applying a certain federal law in a manner which would prejudice certain of its members.
iii)    ?- Should the court undertake to determine the constitutionality of legislation prior to the occurrence of a concrete dispute b/t adverse parties over it? (No.)
iv)    Other Notes:
(1)   The basic rationale of ripeness is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties’. The question of ripeness turns on the fitness of the issue for judicial decision and the hardship to the parties of withholding court consideration.
(a)    c/n go to court if there is still an administrative remedy available
The President and Congress
1)      The Foundations of the Foreign Affairs Power
a)      Historical Foundations
i)        United State v. Curtiss-Wright Export Corp
(1)   Rule: The President of the United States has the power to regulate trade between the US and foreign nations by proclamation.
(2)   Facts: Curtiss-Wright Export Corp. was indicted for conspiracy to sell arms to Bolivia in violation of a Presidential proclamation authorized by a congressional resolution.
(a)    After both the Senate and the House passed a joint resolution to permit the Presidential prohibit the sale of arms to foreign nations by Presidential Proclamation “as he deem necessary” the President issued a proclamation forbidding arms sales to a group of countries including Bolivia.  
(3)   ? – Has the President of the United States the power to regulate trade between the US and foreign nations by proclamation?  (Yes.)
(4)   Other Notes:
(a)    In matters of foreign affairs, the President is the sole organ of the federal government and speaks for the nation as a whole. His power is not conditioned in this area upon any act of Congress, but is plenary power, exclusive to him.
ii)      Youngstown Sheet & Tube v. Sawyer
(1)   Rule: The President, as leader of the Executive Branch, is bound to enforce the laws w/in the limits of the authority expressly granted to him by the Constitution and he cannot usurp the lawmaking power of Congress by an assertion of an unspecified aggregation of his specified powers.