Amanda Tyler – Spring 2013
Federal Courts Master Outline
1. General Principle of the Federal Judiciary: The power of the judiciary is limited to actual cases or controversies (Article 3 § 2; Jefferson-Jay Letters), but when it does exercise its power, its decision is final (Hayburn, Marburry; Plaut: Legislature’s reinstatement of cases the court had dismissed violates separation of powers).
a. Marburry:
i. Jurisdiction:
1. Original Jurisdiction: Cannot be expanded.
2. Appellate Jurisdiction: Subject to exceptions and limitations
ii. Rights and Remedies: Rights are meaningless without judicial remedies.
iii. Executive Discretion: Court should not review decisions submitted to executive discretion as these are subject only to political review, but if not discretionary function, then there judiciary will resolve the controversy by stating what the law is and applying it.
b. Models of Judicial Review:
i. Dispute Resolution Model: The law declaration power of the judiciary is incidental to its duty to decide concrete disputes. (Marburry)
1. Courts should not vindicate abstract interests, but only instances where a D’s violation of a legal duty to P has caused a distinct and palpable injury to a concrete legally protected interest.
ii. Law Declaration Model: Law declaration is an independent function of deciding concrete disputes, see e.g. public actions.
1. Founding:
a. Rise of administrative state creating new widely dispersed rights and someone needs standing.
b. Similar rise of substantive expansion of constitutional rights under Warren Court, e.g. voting suits; Constitutional rights as swords
c. Statutory Tools:
i. Constitutional Avoidance: If validity of act in question, court should first ascertain whether construction is fairly possible by which the question may be avoided unless such construction is plainly contrary to intent of congress.
ii. Breadth: Court should not formulate a rule broader than is required for the precise facts.
iii. Last Resort: Court should not rule on constitutional issue if there is another available ground.
2. Advisory Opinions: For a case not to be an advisory opinion, there must be an actual dispute between adverse parties and a substantial likelihood that a decision in favor of the claimant will bring about some change or effect.
a. Rule: Prohibited under both Article 3 § 2 and separation of powers
b. Actual dispute between adverse parties:
i. Advice to co-equal branch before branch’s action (and Article 2 § 2 (Opinions Clause: the President “may require the opinion, in writing, of the principals of the executive department.”) (Jay-Jefferson Letters)
c. Substantial likelihood that a decision in favor of the claimant will have some effect:
i. Judgment subject to review by co-equal branch of gov’t (Hayburn: no case or controversy and review offends independence of judiciary; (Waterman: review by executive of judicial decision on executive department’s award of air routes rendered advisory opinion)
ii. Adequate and independent state ground
iii. Dicta
iv. Mootness / Ripeness / Standing
d. Inapplicability:
i. Article I Courts
ii. State Courts
iii. Declaratory Judgments: Not advisory opinions because concrete dispute between two parties for adjudication of present right
e. Justifications:
i. Posed in the abstract, no lawyers or adverse parties
ii. Legitimacy of the court if disregarded
iii. Keeps courts out of legislative process
iv. Judicial resources saved
3. Standing:
a. Requirements: (Article 3 § 2): D will likely argue that P does not have standing. In order to establish standing, P must allege he 1) suffered or imminently will suffer an actual injury, 2) caused by defendant, which is 3) redressable by a favorable court decision. Actual injury is a constitutional requirement whereby P must demonstrate a personal injury that is and immediate, not hypothetical or conjectural. If P is seeking both damages and an injunction, P must establish standing independently for both remedies.
i. Injury: Plaintiff should try to frame their injury in economic terms, as economic injury is sufficient.
1. Loss of enjoyment: Sufficient (Friends of the Earth), but court likely will be more skeptical and require evidence that actually use infected area (Lujan v. NWF)
2. Discrimination (Potential 3rd Pty Issue): Discrimination is sufficient. (Trafficante: white person standing to sue for landlord’s discrimination; Hechler: Challenge to distribution of more benefits to women even though severability providing everyone reduced if unconstitutional.)
3. Statutory Injury: Congress may create statutory rights to sue, but likely must also satisfy Article III’s requirement that harm be individual to plaintiff. (Akins: Information deprivation sufficient in challenge to classification of org. as advocacy organization rather than political committee; Lujan: no standing “any person” may commence under ESA; Trafficante: discrimination, even if not against P is sufficient.) See Fletcher; personal below.
4. Interest Group Standing: A mere interest in a problem will not suffice. A group may sue, however, if its members have standing individually. (Sierra Club: members do not have standing to challenge ski resort because they did not use park); (Lujan: Need direct evidence that use area. Need a plane ticket).
5. Legislator Standing (Political Question Issues):
a. Personal Injury: Having vote not counted when if counted would have altered the result is plain, direct and adequate interest (Coleman); loss of seat likely sufficient (political question issues)
b. Institutional injury: No standing if claim is “loss of political power,” e.g. challenge to act passed
ii. Immediate:
1. Damages: Harm must have already occurred
2. Injunction: Harm must be imminent and may have already occurred; likely use past harm as evidence of future harm. (Lujan: need a plane ticket)
a. Taxpayer: challenge to law as resulting from harm in increased taxes is remote, fluctuating and uncertain (Frothingham: no standing to challenge maternity funding)
iii. Personal (Framing is important): Closely related is the requirement that P demonstrate more than a generalized grievance in that the harm is not undifferentiated and common to all members of the public. (Richardson). It is unclear whether this is a constitutional or prudential requirement (Akins).
1. Plaintiff:
a. No Plaintiffs Exist: There is a constitutional violation in which people have been harmed. There must be a judicial remedy for every wrong (Marburry)
b. Double nexus: nexus between status (taxpaying) and type of enactment and nexus between status and precise nature of constitutional infringement. (Flast: nexus between taxpaying and violation of spending clause for providing money to religious schools and nexus between taxpaying and violating establishment clause); not expressly overruled.
2. Defendant:
a. No Plaintiffs exist: Lack of a proper plaintiff is evidence that this should be left to the political process (Richardson: CIA accounting); not every wrong needs a legal remedy, see sovereign immunity.
b. Taxpayer Injury: Most recent case held that general rule against taxpayer standing with limited exception to Flast.
c. Not satisfied when source is executive action rather than congress and exercise of power under property clause rather than taxing and spending clause (Valley Forge: property from executive to Christian school); (Hein: no standing to challenge executive order ensuring religious schools have opportunity to apply for funding); (Winn: no standing to challenge tax credit for donation to tuition organizations, some of which are religious issues)
3. Discrimination is sufficiently personal (Trafficante: Apt. Standing to sue LL even though not discriminated against)
4. Akins Exception:
a. Broad: For harms that are sufficiently concrete, there is injury in fact even when the harm is widely shared.
b. Narrow: Harms directly related to voting, the most basic of political rights, are sufficient even if widely shared.
iv. Causation and redressability: P must show D’s actions are 1)but-for cause of his injury and 2)that a decision in P’s favor will redress the harm. Here, how P frames his issue is critical.
1. But For Cause: Is D’s conduct a necessary condition?
a. Regulations / Tax Incentives: Changing regulation or taxes may not change conduct.
i. Eliminating requirement that hospitals provide care to indigent will not necessarily result in reduced services to indigent (Simon)
ii. Mandating prosecution of unwed deadbeat dads to satisfy equal protection will not provide a benefit to mothers. (Linda RS)
iii. Increased review standards may not lead to reduction in environmental damage (Lujon)
b. Chance Deprivation: Deprivation of chance to compete sufficient for standing (Bakke)
2. Injunctions: must show that you are likely to benefit from the equitable relief (Lyons: chokehold no standing, but likely standing for damages), but Sovereign immunity issues.
b. Close Call Considerations:
i.
llenged under the equal protection clause (Baker) because the equal protection clause has judicially manageable standards.
b. Political Gerrymandering (Vieth):
i. Five Justices: May not be brought because lack of judicially manageable standard.
ii. Five Justices: There may in the future be judicially manageable standards, and if so, case may be brought.
2. Republican: Too vague a standard to determine what is a republican form of government. (Luther): old case about legitimacy of Rhode Island Gov’t under Guarantee clause
3. Try (Nixon): No manageable standard for Senate’s duty to try impeachment cases.
b. Tie Breaker: Often, it is really an issue on the merits.
i. E.g.: Challenge to Pres’s veto power fails because the claim has no merit because it is exercised in his discretion.
c. Explanations:
i. Classical Position: only political question the constitution has committed to another branch the exclusive determination of the question raised.
1. Textual Commitment: May be either be commitment of discretion or commitment of exclusive interpretive authority.
a. Issue: If say commitment of exclusive interpretive authority, may conflict with Marburry, say with the law is.
ii. Prudential Theory: Decisions on merits must be principled; decisions on justicibility are prudential.
d. Justifications:
i. Separation of powers
ii. Amenability to judicial resolution
iii. Generalized harm is political issue
iv. Preserve legitimacy by avoiding confrontation with other branches.
v. Allocates responsibility to other branches that may have greater expertise
vi. Self interest disqualifies it from ruling (e.g. overseeing amendment process)
vii. Minimize judicial intrusion when remedy would require judicial control / supervision of another branch’s activities (e.g. national guard)
e. Criticisms:
i. Marburry: Judicial role to enforce constitution and inappropriate to leave their role to the political branches; original understanding that political question only when discretion committed to political branch. Never for individual rights, i.e. cases where there was standing.
ii. Legitimacy: Court has political capital and legitimacy. Avoiding important issues likely results in avoiding judicial review when it is needed most.
iii. Deference instead of abdication.
5. Congressional Control of Supreme Court Jurisdiction: Congress may not expand the original jurisdiction of the Supreme Court (Marburry), but Congress may limit the scope of appellate jurisdiction (Ex Parte McCardle). It is an open question as to what extent Congress may do so. Determining whether this is a valid jurisdiction stripping starts with interpretation of Article III, § 1, 2.
a. Article 3 § 1: The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as congress shall make.
b. Congress has broad power to strip Court of Jurisdiction (Wants no jurisdiction):
i. Textual argument: Article III: Appellate jurisdiction subject to exceptions and regulations
ii. Historical Argument (Madisonian Compromise): First congress did not vest Supreme Court with all jurisdiction; intended as one of the only checks on the Supreme Court.
