I. Background Information
A. The Constitution
a. It creates a framework for American government by empowering and limiting government
i. History:
1. Declaration of Independence, authored by Thomas Jefferson was signed in 1776
a. No legal authority, but foreshadowed what protections would be in the Constitution and Bill of Rights
2. After the Revolutionary War ended in 1781, the 13 colonies ratified the Articles of Confederation
a. Articles of Confederation:
i. First constitution of US
1. Created a weak national government and had a strong commitment that state governments retain sovereignty
ii. No federal judiciary and no executive
iii. Congress had no power to tax and no authority to regulate commerce among states
3. Problems developed under Articles
a. States adopted laws that discriminated against goods and services from other states
b. Since no national executive or judicial authority there was no way to ensure states would adhere to laws adopted by Congress
4. May 25 to Sept. 17, 1787 the Constitutional Convention met in Philadelphia
a. Convention agreed to get rid of the Articles
b. Sept. 17, 1787, the members of the Convention approved the document, signed it, and returned home to fight for its ratification
c. Debate among states over whether to ratify the Constitution
i. Federalist Papers were 85 essays written by Alexander Hamilton, James Madison and John Jay to persuade NY Convention to ratify the Constitution
1. Often cited by Supreme Court to show framers’ intent
5. By June 1788 10 states had ratified the Constitution
II. The Power of Judicial Review- Power to strike down laws of Congress that the Court concludes are unconstitutional
B. Marbury v. Madison, 5 U.S. 137 (1803)
a. Relevant portion of Constitution, Art. III
i. “the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish . . . The judicial power shall extend to all cases, in law and equity, arising under Constitution, laws of U.S., and treaties made, or which shall be made, under their authority.”
1. Does judicial power- include power to strike down unconstitutional laws?
a. YES
ii. “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.”
1. Can Congress alter the circumstances in which the Supreme Court has original jurisdiction?
a. NO
b. Facts
i. Before Adams term of president ended, he appointed a bunch of justices of the peace (the midnight judges). One justice was William Marbury. Marbury’s commission was signed and sealed by then Secretary of State John Marshall, but was not delivered.
ii. In 1801 when Jefferson became president, he decided not to deliver the commission for Marbury and not to honor it.
iii. Marbury brings suit in the Supreme Court under the Judiciary Act seeking a writ of mandamus (an order issued by the court asking a government body to perform a ministerial task that the government body already has the duty to perform)
1. Judiciary Act authorizes the Supreme Court to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the US
c. Takeaways:
i. The Supreme Court has the power of judicial review (the power to review, interpret, and possibly strike down congressional laws that conflict with the Constitution)
1. This case is very important because it established the authority for the judiciary to review the constitutionality of executive and legislative acts
a. The Constitution is silent on whether federal courts have this authority- therefore the Court ‘gave’ themselves this power
ii. Here, the Supreme Court does not have the power to issue a writ of mandamus in an exercise of original jurisdiction
1. The Judiciary Act is in direct conflict with the Constitution, which specifically states when the Supreme Court will have original jurisdiction and when it will have appellate jurisdiction
a. When there is a conflict, the Constitution trumps ordinary laws and the Court has the duty to review, and where necessary, strike down laws that violate the Constitution
b. Therefore- provision of Judiciary Act giving the Supreme Court original jurisdiction to issue writs of mandamus is unconstitutional because Congress cannot allow original jurisdiction beyond situations listed in Constitution
2. Constitution is the Supreme Law of the Land
· pp. 887-88, 905-12 (Allen v. Wright) —
· Boumediene v. Bush (twen)
I. Standing (judicially self imposed limit based on the constitutional requirement of case and controversy)
A. General rules of standing
a. What is standing?
i. Whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues
1. Standing does not address the merits of the case
2. If one party does not have standing, another person may (idea of wrong person not wrong claim)
3. Standing is always an issue- a party must have standing in order for the court to hear his/her claim
1. Requirement of standing must be met for a federal court to adjudicate a case
b. Why should a party be required to have standing?
i. Separation of powers- limits judicial review
1. Requirement of standing limits the matters the court will address by limiting the parties available to bring such cases
ii. Prevents excess lawsuits by people who only really care about the issue, but do not have a particularized and personal injury
iii. Fairness
1. Restricts parties to only raising their rights and concerns
c. Constitutional requirements
i. The Supreme Court has labeled three constitutional standing requirements (mandated by AIII case and controversy) that may not be overridden by statute
1. Reference to prudential standing requirements= are those laid down by the court, but are not based on the Constitution and thus may be overridden by Congress
d. Requirements for standing
i. Personal Injury
1. Plaintiff must establish that he or she has suffered some actual or threatened injury
1. Injury cannot be too abstract or speculative, cannot be hypothetical or conjectural
i. Indirect
ii. Lots of action of independent third parties not before court to get to injury
1. Pl did not allege that getting rid of tax exemption would have enough impact to make difference in public school integration (how many schools and speculative if removal of tax exemption would result in school changing policy)
2. Speculative as to whether parents of kids in private school would transfer to public school if change in education or financial policy
a. Would need collective parent action- not clear how many would
c. Hypo
i. Facts
1. Alice often hikes through a path in a national forest that the U.S. Forest Service has just approved to be destroyed and a ski resort built over it
2. The ski resort will be built over Alice’s hiking paths- and thus she would not be able to use them
3. Alice files suit in federal court to enjoin the development of the ski resort, claiming US Forest Service failed to comply with the National Environmental Policy
ii. Standing
1. Injury fact
i. Yes- injury is the harm to Alice’s enjoyment of the environment
1. She uses the trial – so it is personal to her and not hypothetical or abstract
2. Harm is concrete
2. Causation- fairly traceable
i. Yes- Alice’s injury is fairly traceable to the conduct of the government Alice is claiming is illegal
1. Govt. is building ski resort on paths Alice uses to hike
2. Chain of events is clear and not attenuated
3. No action of third parties necessary for govt. action to cause the injury complained of
3. Redressability
i. If court granted injunction, the injury complained of would be likely redressed
1. If govt. is enjoined from building ski resort then Alice will be able to use the hiking paths
4. Remember
i. Standing is not about the merits!
1. Not asking whether govt. failed to comply with environmental act
II. Executive Power
A. Boumediene v. Bush (2008)
a. Issue
i. Whether the privilege of HC extends to the Plaintiffs
ii. Whether Congress has provided an adequate substitute for HC, thus effectively complying with the Suspension Clause
b. Holding
