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Constitutional Law I
University of Alabama School of Law
Krotoszynski, Ronald J.

Chapter 2 – Judicial Review
The Legitimacy of Judicial Review
   The Constitutional Convention
1.      Marbury v. Madison: the power of judicial review is vested exclusively in the Judiciary.
a.       Judicial review is the power to grant a law repugnant to the Constitution void
b.      Recognized that there was a scope of executive privilege completely discretionary
c.       Congress may define the limits of SC appellate jurisdiction
d.      Original jurisdiction over foreign officers is vested in the SC
e.       Officers of the executive branch are subject to judicial intervention
Congressional Control of Judicial Review by the Federal Courts
   The Scope of Congressional Power over the Jurisdiction of Lower Federal Courts
2.      Ex Parte McCardle: Congress may limit the jurisdiction of the Courts
a.       Congress may not limit the jurisdiction of the Courts contingent to a favorable decision
b.      Congress may not completely deprive the courts jurisdiction over certain Constitutional areas
c.       This is the only example of a result oriented restriction to jurisdiction that has been sustained
3.      United States v. Klein: Congress may not determine the effect of a presidential pardon
a.       Congress may not trample the Court’s power to determine the meaning of an executive order
b.      The Court has the power to determine the scope of the Separation of Powers
c.       Interestingly, Congress could limit its jurisdiction and get around the Court’s decision here
Chapter 3 – The Jurisdiction of Federal Courts in Constitutional Cases
Supreme Court Review of State Court Decisions
   History and Structure
      Article III of the Constitution and Section 25 of the Judiciary Act of 1789
1.      Martin v. Hunter’s Lessee: the SC has the authority to review State SC decisions
a.       The power to review state court decisions is important to ensure uniformity of the laws
b.      The SC must maintain review over St. Ct. decisions over fed. law, treaties, or the US Const.
c.       This power is conferred by 28 USC §1257
Issues of State Law in the Supreme Court: The Adequate and Independent State Ground
Review of Issues of State Law in Cases Involving Federal Questions:
“The Adequate and Independent State Ground”
2.      Murdock v. Memphis: a fed. ct. cannot review a st. ct. decision regarding both st. and fed. law
a.       The interpretation of fed. law must rely on an adequate and independent state law ground.
b.      If it is not based upon a federal decision there is nothing to correct – only an advisory opinion
Supreme Court Review of State Court Decisions Upholding Claims of Federal Constitutional Rights
3.      Michigan v. Long: absent a plain statement, the SC may review a st. ct. decision that rests on fed. law
a.       If it fairly appears to rest on state law, even if it uses fed. decisions, the SC will defer
b.      First look at whether there was an adequate and independent (A&I) basis under state law
c.       In the absence of A&I basis, the SC assumes the st. ct. decided that way based upon federal law.
d.      The SC has always had jurisdiction to review a st. ct. decision over the meaning of federal law.
e.       If the state court decision implicates federal law in a significant way, it is subject to review.
Constitutional Litigation Initiated in the Federal Courts
   Jurisdiction of Lower Federal Courts to Enforce Federal Rights
4.      Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics: The Constitution creates a limited cause of action against federal officers.
a.       42 U.S.C. §1983 confers standing for denial of constitutional rights by state officers
b.      This extended the standing of litigants for denial of constitutional rights by federal officers
Cases and Controversies and Justiciability
   In General
      Advisory Opinions:
·         The Executive may seek opinions from the Heads of Departments (Art. II, § 2, cl. 1)
·         There is no power to compel advisory opinions from the Supreme Court
·         In order for the SC to hear a claim, it must constitute a live case and controversy (Art. III, § 2)
·         The requirements for a case and controversy are: (1) Injury, (2) Traceability, and (3) Redressability
5.      Hayburn’s Case: The SC will not issue advisory opinions – for Revolutionary War veterans disputes
6.      Flast v. Cohen: the judicial power is limited to cases and controversies – for those that are justiciable
a.       Justiciability is limited by the Constitution (Art. III § 2) and subsequent common law doctrines
b.      These include: advisory opinions, standing, mootness, ripeness and political questions
c.       “Federal judicial power is limited to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process”
      Taxpayer and Citizen Standing
7.      Lujan v. Defenders of Wildlife: there is no general taxpayer or citizens’ standing
a.       In order to have standing there must be: (1) injury, (2) traceability, and (3) redressability
b.      Congress cannot convert the public interest in executive enforcement into a right of action
c.       Vindicating the public interest is the province of the Congress and the chief Executive
d.      If Congress creates a right of action it must identify the class and the redressible conduct
8.      Raines v. Byrd: there is no standing for a Congressionally approved diminution of official authority
9.      Federal Elections Commission v. Akins: where a harm is concrete, though widely shared, standing exists
10.  Clinton v. City of New York: where an injury is immediate and concrete, there is standing
11.  DeFunis v. Odegaard: a case is moot when a decision by the ct will no longer affect the rts of the parties
a.       Facts: guy was trying to get into law school. This reached the court when he was a 3L
b.      A court may overcome mootness if the issue is capable of repetition but evading review (2 types)
                                                              i.      The issue will always be moot by the time it reaches the ct and it’ll affect this party again
                                                            ii.      Party will not seek recourse again, but it will affect similarly situated people (abortion)
12.  United Public Workers v. Mitchell: ripeness requires imminent (not prospective) abridgment of a right
a.       Facts: Employees for civil service commission sought injunction to forbid enforc

k-Bird Creek Marsh Co. – State laws that do not conflict with a federal laws may survive
a.       Facts: Delaware builds dam restricting water flow in stream because of health concerns
b.      States may regulate interstate commerce if there is an important state interest involved
c.       Two-part test for Supremacy Clause
                                                              i.      Is there a state law that conflict with a federal law or interest?
                                                            ii.      Does the state have a compelling state interest in that area (health, safety, or welfare)
5.      Wickard v. Filburn: an econ. activity when aggregated substantially affects the economy is commerce
a.       Facts: Farmer grows 2 acres of excess wheat in violation of federal statute, for personal use
b.      (ECAWASANE) – an economic or commercial activity when aggregated substantially affects the national economy
6.      Heart of Atlanta Motel: Congress may regulate any instrumentality of commerce, including motels
a.       Facts: motel owner refused to comply with federal law that disallowed racial discrimination
7.      U.S. v. Lopez: Congress doesn’t have authority to regulate noneconomic activity under ECAWASANE
a.       Facts: a man challenged the const. under the Commerce Clause of a Gun-Free School Zone law
b.      The possession of a gun near a school does not represent an economic or commercial activity
8.      United States v. Morrison: Congress cannot use the Commerce Clause as a blanket regulatory power
a.       Facts: Congress passes the Violence Against Women under the Commerce Clause 
b.      In order to regulate under ECAWASANE you have to have an economic or commercial activity
9.      Gonzales v. Raich: similar to Wickard – the Commerce power extends to private economic activity
a.       Facts: DEA destroyed patient prescribed 6 marijuana plants as a violation of the drug laws
b.      ECAWASANE can include 6 privately grown marijuana plants for the purpose of medicine
c.       (Scalia’s Concurrence) may regulate this area as part of a national regulatory scheme
10.  National Federation of Independent Businesses v. Sebelius: Congress has no power to compel action or economic activity under the commerce power
a.       Inactivity in a market cannot be aggregated for the purposes of the Commerce Clause
b.      Interestingly, if it law said you could not pass state lines without health insurance it would work
11.  Pierce County v. Guillen: Congress may regulate the channels and instrumentalities of commerce
a.       Facts: Congress passed a law to restrict the access to information about road defect/projects