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Constitutional Law I
University of California, Hastings School of Law
Leshy, John D.

Judicial Review: Authorizes courts to determine the constitutionality of laws and enforce the Constitution against other branches of government. (Not express in constitution.). Only can be overruled by amendment, which is virtually impossible.
            Authority: No express constitutional authority. Some criticize it as being un-democratic; as they have lifetime appointments, but others counter that they must be approved by elected officials.
Another viewpoint: questionably democratic but provides a very good check on more democratically accountable branches. Also, Bickel rights least dangerous branch, no power of purse or sword.
Marbury v. Madison
Facts: Plan to pack the courts w/ the midnight appt’s of the federalists on the way out. Wanted a writ of mandamus to deliver the appointment.
Rule: The supreme court has the power, (Supremacy Clause and art VI § 2 of the constitution) to review acts of Congress that are repugnant to the constitution and find them constitutional.
Analysis: Grabbed review power for courts, also limited the court’s original jx to only designated cases (affecting ambassadors, public ministers, and when state is a party) and for everything else, only has appellate jx.
Avoidance Principle: Generally the court will go out of it’s way to avoid declaring something unconstitutional.
            Martin v. Hunters Lessee (SCOTUS right to overrule states?)
            Facts: p British inherited vast landholdings in VA. VA confiscated and gave land to D. 
Rule: Federal Courts can hear appeals from state court decisions! Article III gives appellate jx. State judges are not entitled to independence from the federal judicial system and subject to the constraints of the Constitution.
Fed Judiciary Act § 34: Laws of states shall be regarded as rules of decisions in trials at common law in the federal courts.
TAKEAWAY (ch. 1): Marbury: Courts have final word in what congress can do.
State Courts: Possess JX, to address/decide fed U.S.C. questions, b/c U.S.C. requires state courts to take an oath of support to U.S.C.. ADDITIONALLY U.S.C. mandates state courts follow U.S.C if it applies to case properly before them.
Political Question Doctrine
Facts: Fed judge convicted of making false statements before a fed grand jury and sentenced to priosn. Senate voted to invoke own Impeachment Rule IX, where a committee of senators receives evidence and testimony and presents to the rest. Argued all senate had to hear.
Rule: Senate’s power under the Impeachment clause presents a nonjusticiable political question.
Analysis: Senate should function independent of the judiciary in some respects. Says “sole power to try….” They get to decide what try means. Other examples: Regarding specific language of Const., insufficient standards for resolving issue at hand, or where another branch is in process of reviewing the issue.  Held: Political question, not for court to decide.
Baker v. Carr (1962): Controversy is nonjusticiable when: there is “a textually demonstrable constitutional commitment of the issue to a coordinate political deperantment; or a lack of judicially discoverable manageable standards for resolving it.
Treaty related:  Obama unilaterally rescinded trade treaty w/ China, and senate was upset. Congress gets to ratify treaties but no word on dissolving them.
Redistricting: Originally considered pol ?, turned into vastly irrational districts created by desperate congress persons to stay in power, RURAL domination of senate.
Trend: largely moving away, embraced view that it alone among 3 branches has power and competency to provide the full substantive meaning of constitutional provisions. (47)
            Wasn’t invoked in 2000 Bush v. Gore case.
            Constitutional Provisions:
            Art. III § 1: Federal judges “shall hold their Offices during good behavior…”
            Art III § 2, cl 2.: Original Jx exists when…(ambassadors so on…)
Art III: doesn’t require congress to establish any lower courts at all, can prescribe limits of lower federal court Jx. What about State Courts? NO money?
Congressional Regulation of Judicial Power
Congress is authorized to make “exceptions (cl.)” (to appellate JX Art III.) and court is “not at liberty to inquire into the motives of congress.” –According to McCardle anyway. NEXT PAGE
Ex Parte McCardle TAKE AWAY (chp. 1): Courts practice restraint sometimes. Political ????
Facts: Post civil war—congress imposed military govt in former Confed states under Civil War reconstruction. D, newspaper editor held in military custody for publishing libelous and incendiary articles. Brought writ of HC SCOTUS granted certiori. Congress then passed act that repealed much of 1867 act which provided for HC stripping SCOTUS of JX on any such appeals (Supremacy Cl—Art VI).
Rule: Although SCOTUS derives appellate jx from Constitution, it also gives Congress express power to make exceptions to that JX.  
Analysis: Judicial restraint, authority is CERTAINLY not unlimited. Also, repeal doesn’t affect the jx previously exercised by court. (could lead to problems, stuck wherever last ruling  is).
            -Here just according to statute, less-likely to defer on constitutional guarantee issue.
Ex Parte Yerger (Interpretive Principle): Implied repeals of SC jx should be disfavored.
Pacific States Tel. & T. Co. v. Oregon 1912: Oregon’s constitution allows citizens to enact laws through initiative. Citizens enacted tax on utitliy, utility sued arguing that the Guarantee Clause (Art 4., § 4) guaranteed a Republican government, and tax enacted by citizens rather than elected representatives.
            Held: Political ? Congress’ job to define character of state governments in Art 4 §4.
Goldwater v. Carter 1979: Art. II. § 2, cl. 2—President can make treatiess provided 2/3 present senators concur, silent on getting rid of. Held: Political ?
Coleman v. Miller: Art V—3/4 all states must raftify const amendment. Issue: Can state w/draw approval prior to ¾ critical mass. H: Period of time for w/drawl a political question.
Boumediene v. Bush (2008): Statute w/drawing the courts certiorari jx in certain HC cases does not affect authority to review the case upon petition for an original writ of HC.
Suspension Clause: HC shall not be suspended, unless when in Cases of Rebellion or Invastion of the public Safety may require it.
-Court here struck a provision in Military Commissions Act (MCA) which w/drew  HC jx for aliens held as enemy combatants in GITMO.
            Other Congressional Checks on Judiciary:
1. Change Size of Court (judges have tenure, but Congress could let court shrink, or add justices more friendly to their agenda.
FDR plan probably constitutional b/c ample precedent for changing size of court, didn’t interfere w/ life tenure, and U.S.C. is silent on # of supreme court justices.
2. Qualifications: Art III doesn’t provide judge’s qualifications, could make them.
3. Money: Congress controls spending, could w/hold funding from the court.
Political Check: probably prevents protracted conflicts between Court and Congress, or Court v. Public opinion, also prevents Congress from w/holding funding.
FEDERAL COURTS (LOWER): Art III. Gives congress complete authority over federal courts, can abolish them altogether, so it reasons that they can limit jx in some circumstances.
Prerequisites to Federal Jx and Judicial Review
Art III: Federal Judicial power extends only to “cases & controversies.” NO ADVISORY OPINONS.
            Standing (Elkgrove, kid in mothers care), ripeness, mootness.
Final Judgmeents or Decrees: To avoid 1. Unnecessary constitutional decsiions 2. Inefficient piecemeal review, 3. Unnecessary interference w/ state court processes
Issues Duly raised in State Court: So facts are adequately reviewed, are exceptions.
Adequate and Independent State Grounds: Court only power over state judgments is to correct them to extent that would incorrectly adjudicate federal rights.  If issue is ambiguous, SC will review, so as not to allow states to avoid review simply by confusing the issue.
National Legislative Power
Congress must have Express or Implied Power (N+P broad though)(U.S.C.): Art I: Grants “all legislative powers herin granted shall be vested in a Congress of U.S. which shall consist of Senate and house of Reps.
Necessary and Proper Clause Anything for general welfare, court read it here as “convenient or useful” – McCulloch
Amend. X: Powers not delegated to U.S. by the C, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Constitution didn’t start fresh, states already existed. Articles of confed too weak, no power to raise armies, collect taxes, regulate commerce (particularly to eliminate trade barriers between individual states, enforce laws, and enforce treaties.
Federalism: System of diffuse power. Tried to balance strong national government v. states rights (Leshy said about Slavery, more stable states rights, more stable slavery). THE NATIONAL BANK provided proxy grounds for this battle to play out.
Substantive Policy Question: What level of govt (state/local/federal) has authority under U.S.C. to act in a given situation?
Process Question: What institution of govt has final authority to decide subs policy question? Should allocation between state & fed be a matter of polit. & leg, or set as a matter of CLAW by courts.
McCulloch v. Maryland: (NAT BANK CASE)
Facts: Maryland had statute taxing banks operating w/o state authority. Only applied to Fed.
Rule: Congress can establish a federal bank b/c Necessary and Proper Clause supplies it the discretion and power to choose and enact the means to perform the duties imposed upon it.
Analysis: While this power is enumerated don’t all have to

n. Interstate Commerce Act (1887) Sherman Anti trust act (1890) ushered in new Era of Fed regulation.
1887-1937: Controlled by conservative justices, many federal laws invalidated as exceeding commerce power about activities reserved for states. 1st time courts used judicial review actively to invalidate state and federal regulations. After Hammer; NLRB v. J&L Steel, U.S. v. Darby, and Wickard v. Filburn signal a substantial departure, a much more expansive view of the CC prevailed…
1937-1995: Not a single law struck down on commerce grounds. Deference. A
TEST POST 1995: Congress could regulate any activity if there was a substantial effect on IC.
            AGGREGATION PRINCIPLE: Vast expansion, as congress now permitted to leg individual conduct.
Deference to Past: SCOTUS must be willing to overturn bad precedent, b/c they are the final authority, and no one else can, unless an amendment gets passed, which has only happened 17x.
Protection of Other Interests Using CC
CC was used to protect civil rights laws as well as regulatory laws. HOA-Katzenbach. both unanimous. In this arena, the court showed a lot of deference until Lopez.
            Heart of Atlanta Motel, Inc. v. U.S. Civl Rights case CC (CRA=Federal Civil Rights Act 1964) (103)
            Facts: Hotel near hwy, advertised nationally, most travelers Interstate, challenging req’s of fed CRA.
Rule: The power of Congress to promote interstate commerce includes the power to regulate local incidents thereof, which might have a substantial and harmful effect upon that commerce.
Analysis: RATIONAL BASIS TEST: 1. Does congress have a rational basis for finding that racial discrimination affects commerce 2. If it had such basis, are the means selected to eliminate that evil reasonable and appropriate. Millions of people travel from state to state, African Americans have been subject to discrimination in transient accommodations, and are deterred by being unable to obtain accommodations. CC embraces all transportation whether or not commercial.
Katzenbach v. McClung 1964 105: As long as congress can show rational basis for finding chosen reg scheme necessary to protection of commerce, investigation is at end. DEFERENCE TO CONGRESS.
Lopez v. U.S.
Facts: Gun-Free School Zones Act (1990) made it unlawful for anyone to knowingly possess firearm near school zone. Kid brought one, charged federally.
Rule: GFSZA exceeds CC power. Congress can regulate 3 broad categories w/ CC:
a. Use of channels of IC
b. To reg and protect instruments, persons or things in IC, even if threat may be exclusively Intra
c. includes authority to regulate those activities having a substantial relation to IC (substantially affect).  FIRST TIME IT WAS REG WAS STRUCK DOWN AS BEING TOO EXPANSIVE OF CC.
Analysis: Leshy “law is badly drafted, little explanation.” Court ruled gun possession near school in no way affects economic activity that might substantially affect IC.
U.S. v. Morrison: Is § 12981 of Violence Against Women Act constitutionally supported by CC as regulation of an activity that substantially affects IC?
RULE: CC can only be used to regulate activities that are economic in nature.
Analysis: (Reinquist) Gender motivated crimes, not in any sense, economic. Regulation against intrastate violence not directed towards instrumentalities, channels or goods…has and is exclusive to states. In order to swing court, Congress should 1. Link its authority to behavior it’s attempting to regulate (show behavior somehow affects commerce) 2. Use legislative findings to provide evidence regulation is necessary.  Concurrence (Thomas): Framers separated commerce, ag, and mnfting. Should be read much more narrowly.  
Note: Limited CC further than Gonzales, , saying congress cannot regulate a noneconomic activity, even if cumulatively it has a substantial effect on interstate commerce.
-Should have been easier to uphold CC here, b/c Congress had extensive legislative findings linking content being regulated, and Interstate Commerce.