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Constitutional Law I
University of Alabama School of Law
Fair, Bryan

Constitutional Law
Spring 2014
Judicial Review
The Constitution is silent as to whether the SC and other federal courts have the authority to decide the constitutionality of federal, state, and local laws and executive actions
Marbury v Madison (1803)
Establishes the authority for judicial review of both federal executive and legislative acts
Judiciary Act of 1789
Gave the SC original jurisdiction to issue writs of mandamus
SC says that this Act is unconstitutional because Article III holds that the SC shall only have original jurisdiction for a limited number of cases, and shall have appellate jurisdiction for all other cases
Art III gives the SC original jurisdiction in all cases affecting:
Ambassadors, other public ministers and consuls, and those in which a state shall be a party
You may not change the meaning of the Constitution by passing a statute
Executive action
SC differentiates between discretionary acts of the executive, which will not be reviewable, and those assigned by law, which the courts should afford a wronged individual a remedy
The political process is the only remedy for the former
Martin v Hunter’s Lessee (1816)
Extends judicial review to state court decisions as well
Limits on the Federal Judicial Power
Interpretive Limits
How should the Constitution be interpreted?
Some approaches seek to greatly narrow the judicial power, while others accord judges broad latitude in deciding the meaning on the Constitution
Believe the SC is justified in protecting rights only if they are clearly stated in the text or intended by the framers
Believe the SC should have substantial discretion in determining meaning and that it is important for the Constitution to evolve by interpretation and not only by amendment
2nd Amendment’s right to bear arms
5th Circuit (Emerson)
Individuals have a right to bear arms and it does not only address the states’ need to arm militias
9th Circuit (Silveira)
The Amendment does not confer an individual right to bear arms but covers the people’s right to maintain a state militia
Justiciability Limits
Article III section authorizes federal courts to hear several types of cases and controversies
Cases arising under the Constitution
Federal laws and treaties
Cases involving citizens of different states
In additional to satisfying federal jurisdiction, a party must satisfy the justiciability doctrines
Judicially created “gatekeeper functions” that individuals must satisfy, if they are present, in order for their case to by heard
Advisory Opinions
Federal courts may not issue advisory opinions
Some state courts may
There must be an actual dispute between litigants
Only present “flesh and blood” controversies
Ripeness (When)
A federal court will not hear a case unless there is a present injury or significant threat of imminent injury
Seeks to separate matters that are premature for review because the injury is speculative and may never occur from those cases that are appropriate for federal court action
Rationale is to protect courts from entangling themselves in abstract disagreements over policy
Facial challenge
In the rare instance that you can show that in no instance may this law be constitutional, the lawsuit may be filed even if it hasn’t affected you yet
Must look to both the fitness of the issue for judicial decision and the hardship on the parties of withholding court consideration
Lawsuits that seek declaratory orders on statutes that have been on the books for years and never enforced may not be ripe
Mootness (When)
There is not longer an actual controversy between adverse litigants
Parties settle, challenged law is repealed, futility of proceedings, etc
“Wrongs capable of repetition but evading review”
If there is an injury likely to reoccur in the future and it is possible that it could happen to the P again
If a suit is not flied as a class action, the recurring issue exception applies only if the issue is capable of repetition for the litigating party
Political Question Doctrine (What)– rarely applicable
·         Refers to allegations of constitutional violations that federal courts will not adjudicate, and that the SC deems to be inappro

text of the Constitution, the President’s power is to see that the laws are faithfully executed, which refutes the idea that he is a lawmaker
Can go to Congress and ask for emergency legislation, but cannot himself take legislative action
Three types of presidential action (Justice Jackson’s concurring opinion – cited frequently by both side of the argument)
Acting directly pursuant to Congressional authorization
Strongest authority
Acting in the absence of Congressional authorization or prohibition
Zone of twilight
The President and Congress might have concurrent authority in which the distribution is uncertain
Acting in a way that is incompatible with the will of Congress
Only support is the inherent powers under the Constitution
Weakest authority
“Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress”
The Scope of Inherent Power: The Issue of Executive Privilege
Executive privilege
The ability of the President to keep secret conversations with or memoranda to or from advisors
Not mentioned in the Constitution, but claimed by all Presidents and the SC has acknowledged “constitutional underpinnings” for such a conditional, yet not absolute, privilege
Nixon (1974)
When the ground for asserting executive privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the demands of due process
Cheney (2004)
In a civil case, executive privilege may outweigh due process
When the claim of privilege rests on a need to protect military, diplomatic, or sensitive national security secrets, the privilege may outweigh other interests