Constitutional Law I Outline

Constitutional Law

Virelli

Spring 2013

INTRODUCTION

GOVERNMENT POWER

I. Judicial Power (Article III)

a. Review & Interpretation

· Judicial Review: The SC has the ability to say that what Congress/Executive did is unconstitutional and void it. Marshall says that it is the duty of the judges to say what the law is. (Marbury v. Madison)

· Supreme Court has appellate jurisdiction over state decisions on federal law (Martin v. Hunter’s Lessee)

· Constitutional Interpretation Techniques:

§ Textualism – look to the document

§ Originalism – look to the intent of the framers; what did the people in the society think it meant in 1789

§ Purposivists – look to the subject matter; what was the purpose behind the text. Consider the values, concepts, and principles behind the text.

§ Natural Law – morally, just reading. It seeks justice.

§ Precedent (stare decisis) – constrains judges so they can’t do whatever they want

b. Justiciability: Must arise from cases or controversies

· Standing (doctrine of justiciability) – must be the proper person to bring the suit

§ Elements of Standing (Lujan v. Defenders of Wildlife)

o Injury in Fact

· Concrete and particularized (you can point to something that you lost; not imaginary you have to have plans in the work)

· Actual or imminent

· (Anything involving death could trigger immanency)

· (aesthetic and recreational values are being lessened and if you had travel plans to visit that counts)

· (law depriving you of a right to K (wills) – concrete)

o Causation

· The injury is traceable to the challenged action

o Redressability

· Can you win something that will help, that is related to your injury

§ Associational or Prudential Standing (FOE v. Laidlaw)

o At least one member of the organization would have standing to bring the case on their own; AND

o The suit is relevant to the purpose of the organization

o Neither the claim asserted nor the relief requested require the participation of any of the individual members

§ States do not have to meet all the normal standards because they are afforded a procedural right to protect their citizens (Mass v. EPA)

§ Tax Payer Standing- can bring suit if Congress is spending money in a way that violates the separation of Church and State

· Advisory Opinions – cant just ask the courts what they think about something; it must arise out of a case or controversy

· Political Question – discretionary decisions that are entrusted to Congress or the President

§ How do we decide if a case involves a political question? (Baker v. Carr)

1. A textually demonstrable constitutional commitment of the issue to a political department (specifically says it’s up to the President or Congress)

2. Lack of judicially discoverable and manageable standard for resolving it.

i. **Most important factor, usually decides the case

3. Impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion.

4. Impossibility of a court undertaking independent resolution without expressing lack of respect due to the other branches.

5. An unusual need for adherence to a political decision already made.

6. Potential of embarrassment from multifarious pronouncements by various departments on one question.

§ Political Gerrymandering is a political question because there is no manageable standard for adjudication (Vieth v. Jubelirer­)

a. Different from Baker because it involves disadvantageous district lines, not different votes being weighed differently

· Mootness – when a case becomes irrelevant because the dispute between the parties has ended

§ Two Exceptions:

a. Voluntary cessation

b. Capable of repetition, yet evading review (election disputes, pregnancy)

o Standard: a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur (Friends of the Earth v. Laidlaw)

· Ripeness

§ The dispute must exist; cannot sue for something that will happen in the future.

II. Executive Power (Article II)

a. Where does it come from?

· An act of Congress, OR

· The Constitution

§ “Commander in Chief”

§ “Take care that the laws be faithfully executed”

§ Vesting clause- Constitution vests all executive power in the President

b. Youngstown Framework (Jackson Concurrence in Youngstown Sheet & Tube v. Sawyer) – use in Domestic issues

· President with Congress

§ Presidential + Congressional Power (express or implied authorization)

§ Most power

· President without Congress

§ Presidential Power alone (Congress is silent)

§ Indifference/acquiescence

· President against Congress

§ Presidential – Congressional Power (express