Barret Con Law Fall 2017
I. Powers and constraints of the federal government
The major areas of Constitutional Law:
Judicial Review-A federal court may only hear a case if it involves a “case or controversy” under Art III of the Constitution.
Separation of Powers-A Separation of Powers question involves the relationship between or among branches of the federal government.
Federalism- Federalism question involves the relationship between the federal government and the states.
Individual Rights-These questions typically involve a gov’t, fed or state, taking some action which abridges the right of an individual. An analysis should include the following steps:
(i) Determine which gov’t is acting,
(ii) identify the interest that has been abridged,
(iii) place the abridged interest in the Con,
(iv) ascribe constitutional weight to the interest abridged, and
(v) set the appropriate level of scrutiny.
1. does the government have the power to act?
Federal government can act only if it has express authority
Congress can express only if it can point by express or implied authority in congress
A federal court can hear a case only if there is both const. and statutory authority
State and local governments can do anything except which is prohibited by the constitution
State and local govt have the police power: can do anything except what is forbidden by constition. (congress and fed govt lack police power)
2. has the government violated a limit on its authority?
All governments are constrained by the constitution
Rights ins constitution are limits (BOR)
No government at any level can deny any person equal protection under the law
3. levels of scrutiny
(1) rational basis test: law Is upheld if it is rationally related to a legitimate government purpose
Governments goal has to be something that Is permissible ~ conceivable legitiatme purpose
Under this test courts are deferential to the govt à challenger has burden of proof
1.Law has no No conceivable legitmate purpose
2. Or law Is not rationalelyelated to it
(2) intermediate scrutiny : law will be upheld if it is substaintially related to an important government purpose.
Governments goal has to be important. Court will only look at governments acutal purpose.
Means chosen must be substiantlly related à law must be narrowly tailored to meet objective ( but not the best way) …. Don’t have to be the least restrcitve alternative
Government has burden of proof – they must convince the court that the law is substantially related to important government purpose à Substantial relation test
(3) Strict scrutiny: the law will be upheld only if it necessary to achieve a compelling government purpose
Court has to be persuaded that governments purpose is crucial and means are necessary to achieve that purposeà look at governments actually purpose
Means used = No less restrictive alternative to achieve purpose
Govt= burden of proof
Federal Judicial Power
Art. III, §1: Provides the basis for and the scope of federal judicial power: The
judicial power of the US shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish…” Note: Establishes S.Ct. not the whole system (thru subsequent Congressional acts).
Art. III, §2: The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the US, and treaties made, or which shall be made, under their authority…” Note: Lays out judicial power-all cases under Constitution-language that grants judiciary cases under Constitution textual support for judicial review, but no clear statement.
Original Jurisdiction: The Supreme Court has original jurisdiction “in all cases affecting ambassadors, other public ministers and consuls, and in those in which a State shall be a party…”
Under present statutes, the S.Ct. has exclusive original jurisd only when a state sues a state; in all other cases involving the S.Ct’s original jurisd, Congress, under its power to ordain and establish inferior federal courts, has conferred concurrent original jurisd on fed dist cts. The original jurisd of the S.Ct can neither be expanded nor diminished by statute.
Note: How Marshall relies on for ultimate decision in M v. M-no original jurisd for writ of mandamus.
Appellate Jurisdiction: In all cases other than those listed under its Art III original jurisd, the S.Ct has appellate jurisd, with such exceptions and regulations as Congress shall make.
Under this grant of app jurisd, the Court has app jurisd over all cases coming from lower fed cts, and from cases coming from state courts, as long as state court cases involve a fed ques.
The Supreme Court & the Justices
Approaches to Constitutional Interpretation:
Originalist: judges deciding C issues should confine themselves to enforcing norms that are stated or clearly implicit in written constitutionà congress can evolve C by amendment
Non -originalist: courts should go beyond that set of ref and enforce norms that cannot be discovered in constitution. à can evolve by ammendement & judicial interpretation
First Divide: Interpretivists v. Non-Interpretivists:
1. Interpretivists insist that the only legitimate form of judicial review is interpretation of the written text of the constitution. The work with the text of the Constitution
2. Non-Interpretivists claim that we should not attempt to figure out what the text of the Constitution means. Instead, we should make the constitution a mirror of our present notions of fundamental justice. The supreme court should not be limited to the text alone and may use extra-constitutional norms as a source of constitutional decision
3 limits to judicial power:
Interpretive: how constitution should be interpreted. Some approaches seek to narrow judicial power while others broaden how judicial branch can interpret the C
Congressional limits: ability of congress to restrict federal court jurisdiction
Justiciability limits: refers to series of judicially created doctrines that limit types of matters, fed court can decide.
Power to Review Legislation
Constitution is silent as to whether supreme court and other federal courts have authority to engage in judicial review.
Authority for judicial review was first announced by the supreme court in 1803.
Writ of mandamus: petition to court asking it to order a gov’t officer to perform a duty.
Marbury V. Madison (1)
Marbury: Establishes the authority of the Sup. Ct to interpret the Const. It is the foundation of judicial review of congressional laws.
Note: Marshall establishes judicial review in a very crafty way. Lost the smaller battle-no jurisd for writ of mandamus, but wins the bigger battle-creates broad power of S.Ct to interpret the Constitution. There are other ways he could have gone.
Marshall’s ingenuity: He attacked the constitutionality of § 13 of the Judiciary Act of 1789, under which Marbury sought the mandamus. By this tactic he could establish the S. Ct’s authority to review the constitutionality of a laws enacted by Congress. To do this, hwr, he had to reverse the order of the issues. Instead of deciding jurisd first, which would have defeated his purpose, for it would have meant the dismissal of the case without the need for further comment, he considered the merits of Marbury’s case instead.
Three issues in Marbury:
(i) Has the marbury the right to the commission he demands? Yes, Marbury had a vested right in the office, his appointment was non-revocable and protected by the laws of the country;
(ii) If he has a right, and that right has been violated, do the laws of the country afford him a remedy? Yes, Marbury has a right to the commission, a refusal to deliver was a plain violation of that right, for which the laws of his country afford him a remedy. Marshall makes it clear that delivery was a legally mandated act and not political question of an executive officer performing a duty in which there was discretion;
(iii) If they do afford him a remedy, is it a mandamus issuing from this Court? The supreme court could not grant the writ because the section 13 of the Judiciary act of 1789 (which granted it the right to do
ause: “the S.Ct. shall haveappellate jurisdiction both as to Law and Fact, with such Exceptions, and under such regulations as the congress shall make.”
1.One side: provides Congress with broad powers to remove matters fromS.Ct. purview – a check on judiciary’s power
2.Other side: Congress is limited in ability to control S.Ct. jurisdiction – clause modifies the word “fact” (concern about ability to over-turn thefact finder)
3.Both views – power cannot be used in manner that violates Constitution
Ex Parte MCardle, 1868 (Exceptions Clause- Congress can reduce Supreme Court’s jurisdiction)
McCardle was arrested by the Feds for a series of newspaper articles that were highly critical of the Reconstruction and the military rule of the South. McCardle filed a petition for writ of habeas corpus & said that the Military Reconstruction Act was unconstitutional.
Writ of Habeas corpus: Writ ordering a prompt hearing to determine if a prisoner is being held properly.
Reconstruction = sharp political conflict. President Johnson was opposed to Reconstruction Act, & vetoed it before Congress forced it through. At this time Congress was impeaching him for failure to enforce the Reconstruction Act.
Had been repeated efforts by various interests for the Supreme Court to review the constitutionality of the Reconstruction Act. McCartle files under one statute that allows him to seek habeas corpus, and Congress knows what’s going on and repeals the Act that allows him to sue. Congress trying to keep the court from assessing the Constitutionality of the Reconstruction Act.
After the Supreme Court had already began oral arguments, Congress adopted a rider to an inconsequential tax bill that would make the Supreme Court not have jurisdiction over the McCardle case. àCongress was afraid the Supreme Court ruling would be obstruction or invalidation of Reconstruction.
Can suspend habeous corpus in time of rebellion and war.
Ex parte Merryman
Does Constitution provide protection/right—writ of habeas corpus?
Not expressly à Have read it into something else—5th/14th amendment due process ….. Suspension clause—A9
Does suspension clause empower Lincoln to do what he did?
Textually located in legislative powers—means to say congress—implied by location.
Alleging violation of the due process rights of the 14th .
Issue: Was Lincoln acting beyond his constitutional power in delegating the suspension of the writ of habeas corpus to an army officer? Holding: Pres can’t do what he did—A1S9—location of power in legislative section—pre cant suspend or authorize military officer to do it
Lincoln won’t comply with Taney’s order and Taney has nothing to force him to
Is Lincoln higher than the judiciary?
Silence of constitution argument
Privilege of the writ of habeus corpus shall not be suspended unless when in cases of rebellion or invasion the public safety requires it àThreat to Washington was serious—Lincoln did not comply with Taney’s ruling or writs—gets congress to give him suspension legislationàWords mean if there is an emergency—then he can do so—even if its written in the negative
Bates: Theory of Departmentalism: Coequal branches of govt, so if executive has to defer to judiciary then the judiciary also must defer to executive