Constitutional Law I Outline

ROLE OF SUPREME COURT

I. Judicial Review (General Rule = Marbury = Violations of legal rights are subject to judicial review)
A. Executive Acts
1. 2 classes of executive acts NOT subject to judicial review:
a) Political matters = Executive violations of legal rights that are political in nature are NOT subject to JR
b) Discretionary matters
(1) Where C or federal law places a subject matter within executive’s discretion
B. Case & Controversy
1. Art. III s. 2 – Court’s J is limited to “cases and controversies”
2. Jurisdictional Limitations
a) Court cannot:
(1) Issue advisory opinions
(2) Decide political questions
(3) Decide cases where litigants don’t have standing
(4) Decide cases that are premature or moot
3. Standing
a) Case must have real adversaries or a clear dispute
b) 3 Prong Rule
(1) Distinct injury alleged
(2) Injury is traceable to the challenged action (statute)
(3) Requested relief from the injury must be likely to follow from a favorable decision (injury likely to be redressed by court)
c) Ideological or public interest NOT enough
(1) Cannot litigate claims of 3rd parties
(a) Domestic relations exception – federal courts won’t hear cases involving elements of domestic relationship (i.e. custody, divorce, alimony)
(2) Threat must be real and immediate, not speculative and hypothetical
4. Political Questions
a) Definition (Baker v. Carr)
(1) Is there a constitutional commitment of the issue to another branch?
(2) Is there a lack of judicial standards?
(3) Is it impossible to decide without a policy decision from another branch?
(4) Is it impossible to decide without showing a lack of respect to other branches’ decisions ?
(5) Is there an unusual need for unquestioning adherence to a political decision already made?
(6) Is there the potential for embarrassment from multiple pronouncements from different branches?
b) Presence of any one of these means it’s a political question!!!!
(1) Reapportionment = NO
(2) Impeachment of a judge = YES
(3) FL election recount = NO

SEPARATION OF POWERS — Article 1

I. Domestic Affairs
A. NOTE: Separation of Powers does NOT require absolute presidential privilege or immunity from prosecution
B. When SC is deciding dispute between Executive and Legislative branches, look at:
1. Historical precedent
2. Text of Constitution
3. Structure of Constitution
C. Presidential Seizure
1. 2 Sources of Executive Authority
a) Acts of Congress
b) Constitution
2. Can be express or implied
3. Functional Approach to presidential power (Dames & Moore)
a) Sliding scale of presidential authority:
(1) Most (broadest) power = action with expressly or implied authorization by Congress or Constitution
(2) Acts in absence of congressional grant or denial of authority
(3) Least (narrowest) power = action incompatible with express or implied will of Congress
D. Presidential Privilege
1. There is NO express presidential privilege in the Constitution
a) EXCEPTION = Necessity (national security, etc.)
2. Apply balancing test
a) Ex: Nixon balanced president’s arguments for privilege (candor among advisers, necessity, etc.) with special prosecutor’s duty to enforce criminal justice
E. Congressional Power
F. Leg