Con Law Outline
1. Judicial Power
“The power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself.”
Marbury v Madison (1803): Judicial Review
· Article 3 defines the power of the Supreme Court: establishes the SCt and any courts Congress may create, and gives original jurisdiction and appellate jurisdiction. It does not speak to the power of the SCt to interpret the Constitution – SCt is interpreting the Const. to determine that the SCt has the power to interpret the Const.
· The Judiciary Act of 1789 is in conflict with Article 3 because it gives the SCt original jurisdiction to issue writs. To the extent that the Act contradicts the Const., it is invalid.
o the Const. does not expressly prohibit additions or original jurisdiction, but subjects on which the SCt has original jurisdiction are expressly enumerated. Therefore, Congress cannot expand it
· The fact that judges take an oath of office to uphold the Const. and there are limitations on Congress with respect to the Const. leads SCt to believe that the courts are those charged with interpretation of the Const.
· Decision also based on the Supremacy clause, historical intent of the Framers (Federalist # 78: Hamilton states that interpretation is within the particular province of the courts)
Supreme Court Authority to Review State Court Decisions
Martin v Hunter’s Lessee (1816): Established Judicial Review over State Court decisions
· Article 3 Sec 2 Clause 2 US Const. “in all other cases before mentioned the S Ct shall have appellate jur. Demonstrates a textual commitment to allow S Ct review of state decisions
· If the S Ct could not review decisions from the highest State Cts, the State Cts would be excluded from hearing cases involving questions of federal law
· The Supremacy Clause states that fed interpretation trumps the states interpretation
Judicial Exclusivity in Constitutional Interpretation
Cooper v Aaron (1958): S Ct says states are bound by judicial decisions, even when not a party to the case. Goes to Marbury and Art VI Supremacy Clause: The S Ct is the supreme interpreter of the Const.
Dickerson v United States (2000): Congress cannot overrule a S Ct decision
Ex Parte McCardle (1869): Court Stripping
· Exceptions Clause Article 3 Sec 2: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
· An act of Congress repealing S Ct appellate review of habeas writs removes jurisdiction.
Originalism/Noninterpretivism- adjudication of constitutional issues that is confined to enforcing norms that are stated or clearly implicit in the written Constitution
· Const only changes by Amendments
· If Const is silent legislature should speak
· Confers role of courts
Nonoriginalism/ Interpretivism- adjudication of constitutional issues that goes beyond that set of references and enforces norms that cannot be discovered within the 4 corners of the document
· Considers changing values and norms
· Const can evolve by Ct interpretation
· Judges have to make value judgments
· Believe you can’t always know the framers intent
Constitutional and Prudential Limits on Constitutional Adjudication: “Case or Controversy” Requirement
Justiciability Doctrine- what Ct can and cant hear; determines jurisdiction
· Judge made, Ct made doctrines
Basis for Justiciability Rules- (1) Const (2) prudential (based on wise policy)
Art 3 Sec. 2- The judicial power shall extend to all cases,  in law and equity, arising under this Constitution, the laws of the U.S., and treaties; – to all cases affecting ambassadors, other public ministers and consuls;–  to all cases of admiralty and maritime jurisdiction;–  to controversies to which the U.S. shall be a party;–  to controversies between two or more states;–  between a state and citizens of another state; —  between citizens of different states;–  between citizens of the same state claiming lands under grants of different states, and  between a state, or the citizens thereof, and foreign states, citizens or subjects.
· Congress can override prudential basis by allowing citizen suits
Advisory Opinion- ct opinion that doesn’t resolve a dispute but just advises (not binding)
· Occurs without a case or controversy
Standing- determination of whether a specific person is the proper party to bring the matter to the court for adjudication
· Standing asks whether the plaintiff has a personal enough stake in the outcome sufficient to sharpen the issues for legal determination
· Elements: 1) Injury in Fact- Invasion of legally protected interest which is concrete and particularized and actual or imminent not conjectural or hypothetical 2) Causal Connection- between injury and the conduct complained of (Injury has to be fairly traceable to challenged action of the defendant and not result of independent action of third party) 3) Redressability- Likely that injury will be redressed by a favorable decision
Lujan v Defenders of Wildlife (1992): the Court made clear that plaintiffs must suffer a concrete, discernible injury—not a “conjectural or hypothetical one”—to be able to bring suit in federal court.
· made it more difficult for plaintiffs to challenge the actions of a government agency when the actions don’t directly affect them
Massachusetts v EPA (2007): State has a quasi-sovereign interest with regards to pollution
· state has standing to sue EPA for not enforcing the Clean Act Act
Raines v Byrd (1997): Individual members of Congress do not automatically have standing to litigate the constitutionality of laws affecting Congress as a whole
Clapper v Amnesty International USA (2013): Amnesty International USA and others lacked standing to challenge of the Foreign Intelligence Surveillance Act (reasonable likelihood that their communications would be interpreted is not enough to show injury)
Hollingsworth v Perry (2013): The official sponsors of a ballot initiative measure did not have Article III standing to appeal an adverse federal court ruling when the state refused to do so. (No 3rd party standing)
US v Windsor (2013): the United States Government, despite the executive branch’s agreement regarding DOMA’s unconstitutionality, retains a significant enough stake in the issue to support Supreme Court’s jurisdiction
Mootness- occurs when litigants who clearly had standing to sue at the outset of the litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has gotten underway
· Mootness doctrine requires that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.
· Exception to mootness: cases that are “capable of repetition yet evading review”
o Ex. Roe v Wade: pregnancy is too short to qualify for mootness
· Seeks to reconcile Art 3 requirements with the practical and equitable problem of preventing parties from manipulating the cts.
Ripeness- seeks to prevent premature adjudication; it involves situations where the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action
· A case is not ripe when it is brought too soon, when the parties have not yet reached a concrete conformation (ex- challenging a criminal statute before the statute has been used)
· May rest on Art 3 case or controversy grounds but are sometimes based on discretionary remedial or prudential grounds
Political Questions- 2 strands of modern political question doctrine: 1) some matters are committed to the unreviewable discretion of the political branches 2) that some otherwise legal questions ought to be left to the other braches as a matter of prudence
g a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was recognized in the court’s opinion as having specifically targeted the U.S. Bank
· The Court invoked the Necessary and Proper Clause of the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution’s list of express powers, provided those laws are in useful furtherance of the express powers of Congress under the Constitution.
· This case established two important principles in constitutional law. First, the Constitution grants to Congress implied powers for implementing the Constitution’s express powers, in order to create a functional national government. Second, state action may not impede valid constitutional exercises of power by the Federal government
· 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
· Art 1 Sec 8: To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
· Ct rejects compact federalism (people not states)
· Expansively defines Congress’ powers (adapts to issues of the times)
· Establishes limitations on states dealing with Fed activities
US Term Limits, Inc v Thornton (1995): states cannot impose qualifications for prospective members of the U.S. Congress stricter than those specified in the Constitution
· Art 1 Sec 2 Clause 2 House Qualifications Cause: No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
· Art 1 Sec 3 Clause 3 Senate Qualifications Cause: No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
The Limits of the Necessary and Proper Clause
US v Comstock (2010): the federal government has authority under the Necessary and Proper Clause to require the civil commitment of individuals already in Federal custody. The practice, introduced by the Adam Walsh Child Protection and Safety Act, was upheld against a challenge that it fell outside the enumerated powers granted to Congress by the Constitution
· Ct based conclusion on 5 considerations: 1) the Necessary and Proper Clause grants Congress broad power to enact laws that are “rationally related” and “reasonably adapted” to executing the other enumerated powers 2) the statute at issue “constitutes a modest addition” to related statutes that have existed for many decades 3) the statute in question reasonably extends longstanding policy 4) the statute properly accounts for state interests, by ending the federal government’s role “with respect to an individual covered by the statute” whenever a state requests 5) the statute is narrowly tailored to only address the legitimate federal interest