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Constitutional Law I
University of California, Hastings School of Law
Lee, Evan Tsen

THE AUTHORITY FOR JUDICIAL REVIEW

1. “Judicial review” = the power and duty of courts to refuse to enforce laws or government action that violate the Constitution

a. The institution of judicial review is not spelled out anywhere in the Constitution; it is an inference drawn mainly from the political history of the Constitution

Marbury v. Madison (1803)

b. Validity of judicial review under the U.S. Constitution was first recognized in Marbury v. Madison, which makes Marbury the most fundamental decision in American constitutional law

2. The analytical structure of the opinion in Marbury

a. Court establishes that Marbury has a vested legal right to his commission because the right vested as soon as the seal was affixed

i. This section is important because it demonstrates Marshall’s major premise — that judicial review operates only on behalf of those who can demonstrate the violation of a vested legal right

b. Next, the Court states that Sec. 13 of the First Judiciary Act (passed by Congress) gives the Supreme Court original jurisdiction to issue a writ of mandamus against “persons holding office under the authority of the United States,” which obviously includes Secretary of State Madison

i. “Original jurisdiction” = power of a trial court to proceed — here, the trial court is the U.S. Supreme Court

c. However, Sec. 13 is unconstitutional because it exceeds the Constitution’s grant of original jurisdiction to the Supreme Court, which only covers “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party”

i. The Court apparently did not think Marbury or Madison qualified as a “public minister” or “consul”

ii. Because of this section of the opinion, it is now established that Congress may neither expand nor contract the Supreme Court’s original jurisdiction

d. An unconstitutional law may not be given any effect; therefore, the Supreme Court is powerless to issue a writ of mandamus on Marbury’s behalf

Martin v. Hunter’s Lessee and Cohens v. Virginia (1816)

3. Martin v. Hunter’s Lessee and Cohens v. Virginia recognize the power of the Supreme Court to review state court judgments involving questions of federal law

a. Article III does not explicitly say that the U.S. Supreme Court may review judgments of state courts

b. Sec. 25 of the First Judiciary Act gave the Supreme Court jurisdiction to review some state supreme court judgments involving federal questions

c. Virginia argued that Sec. 25 was unconstitutional because state sovereignty prohibited any federal court review of state judgments

d. Martin and Cohens held that Sec. 25 validly conferred jurisdiction on the Supreme Court to review state judgments, based on inferences drawn from the text of Article III; the practical need for uniformity in federal law; and federal courts having greater independence from political forces than state courts

STANDING TO SUE

a. Standing is a threshold inquiry (i.e., prior to merits)

b. Never an issue where damages are requested — only where injunctive and/or declaratory relief is requested

c. Standing has both constitutional and prudential aspects

1. Constitutional standing requirements come from “case or controversy” clause of Article III

d. Article III mandates three standing requirements:

1. Injury: Plf must allege that he or she is personally being subjected to a judicially-cognizable injury

A. Purpose of injury requirement is to ensure that plf has a personal stake in controversy and is not simply a concerned bystander

2. Causation (aka “fairly traceable”): Plf must allege that the injury is caused by (or is “fairly traceable to”) defendant’s conduct

3. Redressability: Plf must allege that the relief he or she requests will remedy the alleged injury

A. Neither the allegation of causation nor redressability may be overly speculative

B. Causation and redressability may diverge in given case

e. Illustration of constitutional standing requirements: Allen v. Wright

1. “We are all injured when government breaks the law”: not judicially-cognizable injury (generalized grievance?)

2. “IRS support for discriminatory schools stigmatizes black children”: plfs were not personally denied equal treatment

3. “IRS conduct leads to diminution in our children’s ability to receive education in an integrated school”: this is adequate injury

4. Causation too speculative — is IRS failure to crack down on private schools causing white flight?

5. Redressability too speculative — would withdrawal of tax exemption lead private schools to raise tuition? Would increase in tuition lead white parents to return their kids to public schools?

6. Separation of powers problem: forcing IRS to rewrite its enforcement guidelines would overstep judicial bounds; executive branch must be given leeway to decide how to enforce the law

MORE ARTICLE III STANDING

1. Massachusetts v. EPA

a. EPA interpreted statute not to authorize regulation of greenhouse gases; alte

opounds a test requiring plaintiffs to show a “logical nexus” between their status and type of legislation — here, their status was taxpayers and the legislation was pursuant to the Taxing and Spending Clause, so the “nexus” was present

b. Furthermore, there must be a logical nexus between the plaintiff’s status and the precise nature of the constitutional infringement alleged — here, the nature of the infringement was a specific limit on the taxing and spending power, the Establishment and Free Exercise Clauses

i. Distinguish Frothingham, where the plaintiff merely argued that Congress lacked the power to enact the Federal Maternity Act

c. Harlan dissent: Devastating critique of the “logical nexus” rationale — the presence or absence of a logical nexus has nothing to do with whether the plaintiff has a personal stake in the controversy, which is what matters

for standing

5. United States v. Richardson (1974): Plaintiff sued for injunction requiring CIA to disclose its expenditures pursuant to the Statements and Accounts Clause

a. Held: No standing because Statements and Accounts Clause is not a specific limit on taxing and spending power — Flast distinguished

b. Furthermore, any amount of plaintiff’s taxes that went to the CIA was minute and indeterminable — Frothingham controlling

c. Fact that no one has standing to challenge the CIA’s failure to disclose expenditures lends weight to conclusion that the matter is left to the political branches

6. Arizona Christian School Tuition Organization v. Winn (2011): Taxpayer plaintiffs sued to stop state from giving tax credits for donations to “student tuition organizations,” many of which gave money to students attending religious schools

a. Plaintiffs suffered no injury because granting some people tax credits is not “extracting and spending” plaintiffs’ money — plaintiffs are not being required to donate to STOs

b. No causation because third persons, not the state, donate their money to the STOs

c. No redressability because an injunction prohibiting tax credits would not reduce plaintiffs’ tax burdens