Constitutional Law I (a) Federal Judicial Power Outline

I. CONSTITUTION
A. DESCRIPTION
1. Written Constitution
a. It is the oldest, continuous written Constitution in existence.
a. Supremacy Clause – The Constitution is the supreme law of the land, and its ultimate application is left to the Supreme Court.
c. Written clauses restrict freedom of government organizations, i.e. lay out enumeration of powers
3. No Legislative Review – Constitution is not open legislative review, the Supreme Court. serves as the ultimate interpretive authority for Constitutional meaning
4. Based on Federalism rather than Nationalism
a. Limits Constitution’s control at state level
b. Enumeration of National Powers – Government is organized into 3 Branches with enumerated powers limiting their governmental powers creating a system of checks and balances.

B. 2 Categories of Constitutional Questions
1. Challenges to Action by the National Government – D is the government or a government official
a. Doctrine of Enumerated Powers – Action not authorized by the Constitution
àIf the power used cannot be traced back to specific powers granted to that governmental body, then it is unconstitutional
b. Separation of Powers àAction, even though authorized by Constitution, is being performed by the incorrect governmental body
c. Unconstitutional Power – Action is forbidden by Con
2. Challenges to Actions Taken by State Governments
a. Pre-Emption Doctrine – State has legislated on something that is Constitutionally pre-empted and assigned solely to the National Government (i.e. entering Treaties, maritime law, declaring war or peace, etc.)
b. Supremacy Clause – State action conflicts / interferes with national action (Art VI §2 – Supremacy Clause)
c. Affirmative Limitations on State’s Power – State is forbidden from taking action due to affirmative limitations placed on it by Constitution (The Untitleable)

II. CONSTITUTIONAL AUTHORITY

A. SUPREME COURT AUTHORITY– Article VI §2 the Con is the “supreme law of the land.” In Marbury v. Madison, the S.C. said, “it is emphatically the province and the duty of the judicial department to declare what the law is.”
1. Federal Legislation & State Actions àFederal courts have authority to review whether federal legislation and state actions are Constitutional. Marbury
2. State Court Decisions àFederal courts have authority to review state court decisions if case arises out of a federal question and there are no “independent and adequate” state grounds for court’s decision. Article III; Martin v. Hunter’s Lessee
3. Policy behind Judicial Review à Since the Constitution is silent, it is more practical to have an ultimate arbiter, and that should be the Supreme Court, because they can protect the interests of the minority because they are not subject to political pressures.
a. Countermajoritarian Rule à Emphasizes democratic nature of the Constitution. Since judges are not elected, they are appointed, even if they are appointed by elected individuals; the rule is still Countermajoritarian b/c they are not held accountable to the people.
b. Rule of Deference à p67 [“Congress’s acts]… were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place.” i.e. it is more appropriate for the legislature to decide what is an appropriate means for enforcing its power under the Commerce Clause, the voters review the Acts of Congress.

Marbury v. Madison (p. 29), (1803)à Jefferson (new President) refused to deliver via Madison the commissions for Justices of the Peace appointed by Adams (old President) this included Marbury. Marbury sues in S.C. for a write of mandamus to compel Madison to deliver the commission.
3 Issues: 1. Has the applicant a right to commission he demands?
2. If yes, and right has been violated, do laws of US afford a remedy?
3. If yes, is it a mandamus issuing from this court? To answer this:
(a) Is this the right of writ?
(b) If yes, does S.C. have the jurisdiction to issue it?

1 à Yes, since the right is conferred w/the President’s seal delivery is not an essential aspect of this legal right; therefore he has a right to the commission.
2 à Yes sometimes, the Political Question Doctrine forbids review of some disputes.
3 (a) à Yes
3 (b) à § 13 of the Judiciary Act says that S.C. has the authority to hear this matter, but Art. III of Con interprets Con as saying the S.C. does not have jurisdiction. Constitutional issue is which body of law takes precedent? à Constitution trumps the Act of Congress.

B. CONGRESSIONAL AUTHORITY

1. EXCEPTIONS CLAUSE -Under Art. III, §2, Congress has power to limit the appellate jurisdiction of S.C by not affirmatively addressing SC jurisdiction; it may not expand the S.C.’s jurisdiction beyond the federal judicial power. Ex-Parte McCardle.
a. à Check on the Exceptions Clause if the bill of rights
b. NOTE: Justice Douglas contended that there “is a serious question whether the McCardle case would command a majority view today” Glidden.

Congress’s ability to Limit the SC’s authority

Ex Parte McCardle (83)(1869), McCardle wrote for a newspaper right after the Civil War during reconstruction, his articles were highly critical of federal government’s use of its authority. He was arrested and detained; the trial was over whether or not his detention was lawful.
à This is the most authoritative interpretation of the Exceptions Clause.
[Examples of jurisdictional stripping bills is in the Handout that he gave us]

à Under Art. III §2 Con grants Congress the plenary power to make exceptions to the SC’s jurisdiction. However, it may not expand the SC’s jurisdiction beyond the federal power.
à Judiciary Act of 1879 [Limits jurisdictions over cases and controversies] – Lists cases where the SC does have jurisdiction and by not listing cases excludes SC jurisdiction over them, i.e. jurisdictional stripping bills.
à The Exceptions Clause, Art III §2

NOTE – Justice Douglas contended that there “is a serious question whether the McCardle case would command a majority view today” Glidden

Klein (87)(1872)– To establish a claim of seized property in the Civil War, a P had to show proof of loyalty to the Union
à Congress tried to change the effect of the Presidential pardon

The jurisdictional exception at issue here violated the principle of separation of powers in 2 ways
1. By usurping a judicial function
2. By encroaching upon a presidential prerogative

2. NECESSARY AND PROPER CLAUSE: à, Article 1, § 8:
a. Under the “Necessary and Proper” clause of Article 1, §8, if Congress is seeking an objective that is within the enumerated powers of the Constitution (i.e., commerce clause, taxing, spending, war, treaty, equal protection), then Congress can use any means that are rationally related to the objective Congress is trying to achieve provided it is not specifically prohibited by the Constitution. McCulloch v. Maryland.
b. Doctrine of Enumerated Powers – Just b/c it is not expressly stated does not mean it does not fall under the N & P Clause, i.e. Implied Powers, Policy: This goes largely to the Rule of Deference, there is a wide ranging discretion about means to effectuate enumerated powers, Rationale Basis test à Congress has power to regulate through the Commerce Clause (Art I, §8, sc3) – the N & P Clause, Art I §8 sc18
c. Example: Congress can raise and army and navy. Congress makes law to have national bake sale for army and navy. Nothing in constitution about bake sale, but congress can make a bake sale to raise army.

McCulloch v. Maryland (1819)(61) Maryland is alleging that the Bank of the US has refused to pay a state tax, specifically can James McCulloch, a cashier of a branch of the bank. John James sued on behalf of himself and the state of Maryland quitam.
Issues:
1. Can Congress charter the Bank of the US, i.e. is the Bank of the US created by Congress Con’l?
à Art I, §8, – Nothing says that Congress has the power to charter a national bank, but other powers listed such as the power to levy taxes. So you look to Implied Power; Art I, §8 sc18th Clause = Congress uses the Necessary and Proper Clause in order to achieve the means necessary to follow through with their powers listed under the Commerce Clause.
à The Doctrine of Enumerated Powers – Congress cannot overstep their bounds, however, Necessary & Proper Clause allows Congress to create means with which to achieve goals.
Pretext Argument “Is it the SC’s job to act as a lie detector to see whether or not Congress’s stated means are pretext? No.” – Rule of Deference
à Art 10 – all powers listed not listed goes to states – does NOT limit Congress’s power to create a Bank

2. Can Maryland tax the Bank, i.e. can a state tax the national government?
à In this case, with a targeted tax, the SC held that Maryland cannot tax the national bank, but it is still to be determined whether or not a broader tax would be allowed. P70
à Targeted tax = the power to destroy b/c it gives Maryland the authority to tax a federal entity, i.e. people in other states as well Maryland.
à Supremacy Clause – federal objectives should prevail b/c the federal government should have the ability to go about its business without being impeded by states.
à First Issue Holding = Courts interpretation of Commerce Clause under McCulloch – Using the N&P, p67, When it comes to ascertaining whether a particular act is within the powers of Congress …i.e. so long as Congress’s choices are reasonable and re