Con Law I – Kang – Fall 2011
KANG Notes:
US SC is the weakest branch of the government
The Constitution only protects you against actions that the government does against you.
It does NOT protect you against actions by a private individual or entity.
Look at FACTS; look at what’s being done, not at what has been said.
United States Constitution, 1797
Article I à Legislative Power (Congress) = Cash $$$ ‘’’’’’’’’’’’’’’’’’’’’
Article II à Executive Power (President) = Guns (military) ‘’
Article III à Judicial Power (SC & Lower Courts) = words/truth
THE FEDERAL JUDICIAL POWER (Art. III)
I. The Authority for Judicial Review
Article III
Art. III created the federal judiciary and defines its powers. Article III à “The Judicial power of the Untied States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.” It ensures the independence of federal judiciary by according federal judges life tenure (for good behavior) and salaries that cannot be decreased.
Article III, § 1
Ø Creates federal judicial power in the Supreme Court and lower courts
Ø Congress has power to ordain and establish courts.
Article III, § 2
Ø Scope of the federal judicial power
Original Jurisdiction of the Supreme Court
Ø United States Supreme Court has jurisdiction in all cases affecting:
o Ambassadors
o Public ministers
o Consuls
o Those in which the state shall be made a party.
Ø Congress may neither enlarge nor restrict original jurisdiction.
Appellate Jurisdiction
Ø Appellate jurisdiction over state court decisions to ensure states act in conformity with the United States Constitution.
Ø Can hold acts of other branches of the government as unconstitutional.
Ø Can hold state statutes unconstitutional.
*** Article III, NEVER EXPRESSLY grants the federal courts the power to review the constitutionality of federal, state, and local laws or executive actions. The Constitution is SILENT on whether SC has the power to engage in Judicial Review.
This power was first derived in Marbury v. Madison (1803) ***
MARBURY v. MADISON
Context: Political Ideological conflict btwn: 2nd Prez John Adams (Federal Power) v. 3rd Prez Thomas Jefferson (Republican; State Power).
FACTS: John Adams wanted to enact “federalist” laws before Jefferson (Republican) took office. Adams appointed 16 Federalist circuit judges and 42 Federalist JOPs to office, famously called “Midnight Judges.” Adams appointed Marbury as JOP for DC (signed and sealed). Jefferson’s Secretary of State, Madison, (Republican) was instructed NOT to grant the commission (w/hold all un-dispatched appointments to reduce # of Federalist appointments). Marbury filed suit; Madison was asked to explain why & failed to grant the signed commissions.
Marbury filed a Writ of Mandamus (def: a petition to the court to order a gov’t officer to perform a duty).
ANALYSIS: (3 Key Questions)
(1) Does Marbury have a right to the Commission?
YES à The applicant had a vested legal right in his appointment b/c his commission was signed by the President, sealed by the Secretary of State, and, thus, the appointment was not revocable. It vested when the seal was put on it; it doesn’t require delivery!
(2) Is there a legal remedy?
YES à The Court found that b/c the applicant had a legal title to the office, the laws afforded him a remedy.
The judiciary could provide remedies against the executive when there is specific duty to particular person
The essence of civil liberty consists in the right of every individual to claim protection under the laws, whenever he receives injury.
Note→ Just b/c your rights have been violated, it does not necessarily mean that there will ALWAYS be a legal remedy!
However, the court recognized that there are certain things that the Prez does that are NOT reviewable by SC.
(3) If there is a legal remedy, is it a Mandamus from the SC?
NO à The Court held that §13 of the Judiciary Act of 1789, giving the Court authority to issue writs of mandamus to an officer, was contrary to the Constitution as an act of original jurisdiction, and therefore void.
§13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge the original jurisdiction of the SC beyond that permitted by the Constitution.
Article III authorizes Original jurisdiction for suits “affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be a party.”
Congress cannot add to this list cases seeking a writ of mandamus.
RULE: Congress cannot pass laws that are contrary to the Constitution, & it is the role of the Federal courts to interpret what the Constitution permits.
The US SC has the authority to declare 1) the actions of the president or 2) congressional legislation, unconstitutional.
This case establishes the Court’s power of judicial review.
JUDICIAL REVIEW à “the Supreme Court has the exclusive authority to determine whether statutes or other laws are constitutional.”
Art. III is the ceiling of federal jurisdiction. Federal courts are courts of limited jurisdictions and Congress may not expand the jurisdiction granted in Art. III.
HOLDING:
the 1789 Judiciary Act gives the SC MORE power than permitted by Art III §2.2. The Constitution, not Statutes, is the Supreme law of the land (accd to Supremacy Clause, Art VI Clause 2). Thus, Marbury gets his judicial appointment b/c Jefferson’s actions were unconstitutional.
CONCLUSION:
Marbury v. Madison was the first time the SC declared something “unconstitutional”, and established the concept of judicial review in the US. (the idea that courts may oversee and nullify the actions of another branch of government). The landmark decision helped define the “checks and balances” of the American form of government.
· Marshall: “It is emphatically the providence and duty of the judicial department to say what the law is.”
II. Congressional Limitsà EXCEPTIONS CLAUSE
Article III à The Supreme Court shall have appellate jurisdiction, both as to Law and to Fact, with such exceptions and under such regulations as CONGRESS shall make.
In other words→ There are some situations in which Congress can pass a statute that prohibits the Supreme Court and other fed courts from reviewing certain cases
ISSUE: May Congress use this authority to restrict SC jurisdiction to hear particular types of cases so as to effectively overrule SC decisions?
§ What does it mean that SC jurisdiction exists subject to “such Regulations as the Congress shall make” aka EXCEPTIONS CLAUSE.
à Congress has the power to create exceptions & tell US SC not to read it or decide it.
§ This power of Congress has rarely been exercised, except to refine the procedures for obtaining Court review of lower court decisions; over the years the trend has been for Congress to allow the Court maximum discretion in deciding whether to accept or reject a
a. We know Congress can ONLY take away juris if it doesn’t “determine the outcome of the case” (see 2 cases)
(2) Is it a violation of the Sep of Powers???
a. Aka, is Congress acting as Prez by issuing pardons?
o Two Possible Additional Arguments against Statute:
o Statute at issue was redefining the president’s pardon power. Making it arguably unconstitutional as an infringement of the executive’s power under Art II of the Constitution à SEPARATION OF POWERS
o The statute at issue unconstitutionally deprived one of property without just compensation or due process.
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KANG: EXCEPTIONS CLAUSE OVERVIEW
– Congress has the authority to limit the appellate jurisdiction of the federal courts.
– Look for an example where Congress has used its powers under the Exceptions Clause to act like a court itself.
– Congress can determine whether or not something is admissible as evidence.
– In Klein, Congress instructed the court on how to construe evidence. CANT!!
– Is Congress trying to reach a particular “means to an end”?
o Why are they using the Exceptions Clause? Do they want to get stuff?
o If so, then they cannot use the Exceptions Clause.
o If they are not trying to determine the outcome, then Congress is ok.
o Distinguish the difference btw the two cases:
McCardle
Klien
Congress hasn’t pre-decided the case
Charged w/ violating a military reconstruction Act which must be reviewed by the military
Do not know what will happen to him → they may charge or acquit him
Already decided
Congress says that if you received a pardon, it cannot be reviewed
Violation of separation of powers→ Klein will never get his property back if it is taken away from him; ct will not be able to listen to his case
HYPO: If Congress passed a statute under Art III §2.2 requiring the pledge of allegiance be said in every public school, is this permitted? Another statute says: do not review on appeal.
ASK à Where was it authorized under the Constitution for Congress to pass this statute?
LOOK à Is this issue closer to Klein or McCardle?
2 Step Process:
Ask: Is Congress passing the law to determine the outcome of the case?
(1) Yes, like _____ b/c
(2) Distinguish. Not like _____ b/c
III. 10th Amendment “Police Powers of a State”
§ Powers not delegated to the US by the constitution nor prohibited by it to the States are served to the States or to the people.
§ Police power belongs to a state like Fla. or a city like MIA. Under police power, state may pass laws pertaining to safety, welfare and morals. Congress CANNOT exercise this rights that would be overstepping the exclusive powers of states under 10th amendment.
§ If congress overstepping, states; state & local govt and private individuals can challenge the Constitutionality of a statute passed by Congress ***
