Constitutional Law I Outline

Constitutional Law
Professor Elizabeth Joh
Spring 2017
 
 
1st QUESTION à DOES THE ACTOR (CONGRESS, PRESIDENT, STATE, JUDICIARY) HAVE THE POWER TO PASS THIS LAW IN THE FIRST PLACE?
ANALYZE THE POWER: SPENDING, TAXING, COMMERCE CLAUSE, SECTION FIVE, FOREIGN, DOMESTIC, POLICE, JUDICIAL REVIEW
2nd QUESTION à WHAT POTENTIAL CONFLICTS ARE THERE W/ THIS LAW? PRE-EMPTION, 10TH, 11TH, SEPARATION OF POWERS, INDIVIDUAL RIGHTS, ETC.
 
State Power – States have a general police power to regulate the safe, health, and welfare of its citizens.
 
History & Overview
Articles of Confederation
Clear that this wouldn’t work b/c not enough coordinated authority
Ratifying the Constitution
Federalists favored the constitution and wrote essay series explaining it à Federalist Papers
Regularly cited by SCOTUS to figure out what was intended b/c written contemporaneously w/ Con and by delegates
BENEFITS à National gov protects against factions (taking over) and diversity protects minority views
Anti-Federalists opposed the Constitution
Worried that it did not contain a bill of rights that would limit the gov’s power, as opposed to a strong central gov.
Two Views of Proper Interpretation of the Constitution
Originalism à Narrow view of interpretation – either written in text or clearly the intention of the framers of the Constitution (Restrains judicial discretion, amending is the only way to evolve)
Non-originalists à Want more discretion in interpretation so that the Constitution may evolve over time and not just by amendment (vagueness is on purpose because it should be a flexible doctrine)
Sources of interpretation
Text of Constitution
Structure of Constitution – where the power is located (silence w/ regard to one portion of fed gov., yet it is mentioned in another article about a different branch)
History and Tradition
Intent of Framers
Judicial Interpretation (Schools of thought about how one interprets phrases or words)
Public Policy
Standards of Judicial Scrutiny
Strict scrutiny – Court will ask, “Is the law in question narrowly tailored to advance a compelling gov interest?”
Intermediate Scrutiny –  Court will ask whether the law in question is substantially related to an important gov interest
Rational Basis – The law will be upheld if it is rationally related to a legit gov interest (most laws upheld under this scrutiny)
The Role of the USSC
Judicial Review/Jx
Federal Law, Constitution, Treaties of US, ambassadors, ministers, consuls, admiralty and maritime issues
Counter-Majoritarian Difficulty
Judicial review promotes democracy because these constraints were adopted by the people in a time of heightened awareness and occupy a superior status to decisions of temporary majorities.
Court protects rights for political or other groups who are unable or are excluded from participating in the political process.
Judicial Review is Controversial
Good: Insulated from politics, well suited for interpretation, promotes finality
Bad: Undemocratic, counter-majoritarian, concern it will make other branches less careful about Constitutional decisions. Sometimes the court does not hear cases or it defers to the will of the legislature because courts need to maintain its legitimacy w/ support from other branches & the people
Judiciary only has its own legitimacy as power – no army or purse
Doctrine of Constitutional Avoidance – Courts in general should decide cases w/out implicating the Constitution if possible
Marbury v. Madison
Facts: Marbury made justice of the peace, seeking to compel delivery of his commission through writ of Mandamus filed in SCOTUS
Article III sec 2 – where the state is a party & all cases affecting ambassadors, public ministers & consuls the court shall have original jx…in all other cases, the SC shall have appellate review
Establishes judicial review: Allows SC to strike down legislation as unconstitutional. Constitution trumps ordinary law and SCOTUS can say when this occurs b/c Constitution vests this power in SCOTUS
Congress cannot expand original jx of the Supreme Court
Supreme Court has the authority to order an executive office to perform a legal duty when exercising original jx (but can’t regulate purely political questions/when executors’ have discretion) = dicta.
Doctrine of Con avoidance ignored here – could have just said we don’t have jx.
The Constitution is supreme – The Supremacy Clause Article 2 Cl 2
USSC can review state supreme court decisions in civil cases on federal questions and constitutional issues
Martin v. Hunter’s Lessee (SCOTUS appellate jx extends to state civil cases)
Logic – If the USSC can’t hear federal question cases on appeal from state SC and if the lower federal courts didn’t exist (which they don’t have to unless Congress creates them), then the SCOTUS can’t ever hear them = Most cases b/c SCOTUS original jx is very narrow (Article III Sec 2 Cl 11. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the US and treaties made…) + States aren’t wholly sovereign (they can be checked by the SCOTUS) & bound by the Constitution.
Want uniform interpretation of Con and federal laws and we worry about state biases/prejudice
D shouldn’t be deprived of protection of Con and federal laws and we worry about state biases/prejudice
D shouldn’t be deprived of protection of Con simply because P files in state court
SCOTUS can review state supreme court decisions in criminal cases on federal questions and constitutional issues
Cohen v. VA (SCOTUS has appellate jx over state criminal cases)
VASC said that because a state is s party, the SCOTUS has original jx only and not appellate jx over state courts à Court: There will be appellate review of these cases if they involve federal questions b/c we want uniformity – extends Martin to criminal cases.
(1) Article III doesn’t create mutually exclusive categories of original and appellate jx. Where the SCOTUS has original jx, it will also have appellate review if it arises under federal law or Constitutional matters.
(2) SCOTUS has final word on what federal law means and that interpretation binds all federal, state, and local actors
Cooper v. Aaron – AR governor ignoring Brown decision
State/Federal officers and elected officials are bound by SCOTUS decisions because they swear to uphold the US Constitution.
 
Standing
Allen v. Wright: Wright family brought suit against Allen, Secretary of Treasury and IRS alleging that IRS failed to deny tax-exempt status to racially-segregated private schools which caused injury to their children on 2 grounds:
IRS failing to deny tax-exempt status to racially-segregated private schools caused direct harm by creating a climate of stigma against their children.
IRS’s failure encouraged the continued segregation of schools which impair the ability of public schools to retain funding (white flight to private schools)
Rule: To have standing to bring a lawsuit, plaintiffs must sufficiently allege that they have personally suffered a distinct injury, and the chain of causation linking that injury to the actions of a defendant must not be attenuated
Elements:
Injury
(Imminent, concrete, particularized)
Causation
(There must be some line between the defendant’s conduct & injury)
Redressability
(Damages has to be for the kind of injury where redress can be found)
Plaintiffs lacked standing because no ascertainable injury and redressability
Lujan v. Defenders of Wildlife
Court rejects plaintiffs’ vocational nexus argument à sounds like plaintiff who’s upset w/ the gov doing something and therefore lawsuit à not specific enough to understand as an injury. Also redressability is missing because consultation between secretary of interior and federal agencies.
Congress can’t give general standing for all plaintiffs à congress can’t police here
 
The Exceptions and Regulations Clause and Congressional Limits
Appellate Jx of the SCOTUS
Article III Sec 2 Cl 2 “Supreme Court shall have appellate jx both as to the law and fact, w/ such exceptions and under such regulations as the Congress shall make”
Jx stripping à Congress wants to control substantive issues which they can’t constitutionally do through the enactment of laws – so they take away the court’s ability to hear the issues
Ex Parte McCardle (1869)
D appealed under habeas corpus (relief for being held unlawfully by gov) and then Congress repeals habeas corpus appellate review (jx stripping) à Held: Valid exercise of power (court may be trying to protect its legitimacy)
Congress has the power to make exceptions to the appellate jx of the SCOTUS under the explicit terms of the Constitution
SCOTUS can’t inquire into the motives of Congress when they do jx stripping. The only question is whether or not it’s Constitutional.
Congress can limit certain kinds of cases by removing one avenue, but it can’t remove every single avenue of review for similar kinds of cases (Yerger – filed a habeas corpus petition w/ SCOTUS under different act and b/c gov knew they couldn’t deny the SCOTUS review (and they were afraid that court may rule Reconstruction as a whole unconstitutional), gov dropped all charges.
Congress can’t deny the SCOTUS appellate jx such that it proscribes how the court must decide a given case.
US v. Klein 1871 (SCOTUS – President says pardons = get land back; Congress says that pardons = guilty of treason so won’t return land)
When Congress violates separation of powers, this is beyond any valid jx stripping (can’t tell court what to do)
Held: Congress’s jx stripping is unconstitutional
Result of 2 cases (McCardle & Klein)
Congress can restrict the appellate jx of the SCOTUS, so long as it is not infringing upon the essential umpiring function of the SCOTUS and so long as at least one avenue exists for cases similarly situated to reach the court.
Logic: Judiciary must be strong as other br