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

CONSTITUTIONAL LAW, LEE, SPRING 2013
I.      Judicial Power
A.          Source of Federal Judicial Power
1.      Article III, § 1
a.      Created the federal judiciary and defines its powers. 
b.      Provides that the “judicial power of the US shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.”
c.       Requires the est of a Supreme Court
d.      Empowers Congress to create other federal courts and to place limitations on their jurisdiction, with one exception:
                                                                                i.      Original jx, where the power is granted directly from the Constitution to the US Supreme Court, which is the only type of fed. court jx that comes directly from the Constitution.
     
B.          Jurisdiction of the Supreme Court
1.      Original – Under Article III, § 2, the Supreme Court has original jx “in all cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party.” Congress may neither enlarge nor restrict the Supreme Court’s original jx Marbury v. Madison 
 
2.       Appellate – Article III, § 2 also provides that “in all other cases before mentioned, the Supreme Court shall have appellate jx… with such exceptions, and under such regulations as the Congress shall make.”
C.          Scope of Judicial Power
 The Supreme Court has the power to:
1)      Hold acts of the other branches of the federal government (executive branch and Congress) unconstitutional Marbury v. Madison
2)      Review state court decisions to ensure that the states act in conformity with the US Constitution and fed statutes Martin v. Hunter’s Lessee
3)      Decide other state law questions in cases of diversity jx
 
 
 
II.    The Authority for Judicial Review
A.          Judicial Review
1.      Definition: The power and duty of courts to refuse to enforce laws or government action that violate the Constitution.
o   Article III never expressly grants the federal courts the power to review the constitutionality of federal or state laws or executive actions.  Although the Cons is silent as to whether federal courts have this authority, the power has existed ever since Marbury. 
o   Mainstream of lawyers, judges and citizens agree there has to be some kind of judicial review.  The question is the degree of aggressiveness.
 
B.          Authority for Judicial Review of Congressional and Presidential Actions
1.      Marbury v. Madison (1803) – Established the power of the Court to review the constitutionality of federal executive actions and of federal statutes.
Marbury sued directly in US Supreme Court requesting a writ of mandamus (court order requiring a public official to perform a duty) in the capacity as a trial court, arguing that the Supreme court had original jx to hear his suit for mandamus pursuant to § 13 of the Judiciary Act of 1789.  Therefore, the Court needed to be able to exercise original jx in order to have the power to hear it. 
o   The Court held that although the Judiciary Act of 1789 authorized such jurisdiction, the provision of the statute was unconstitutional because Congress cannot allow original jx beyond the situations enumerated in the Constitution and therefore an unconstitutional law cannot be given effect. 
(1)   Court establishes that Marbury has a vested legal right to his commission because the right vested as soon as the seal was affixed
1)      Marbury had a right to the commission because all appropriate measures were followed – his right to the commission was perfected when “signed by the President” and the “seal of the US” affixed (delivery was merely a custom) – and therefore withholding the commission was “violative of a vested legal right.”
2)      If Marbury merely had an expectancy interest he cannot sue – you can only sue to vindicate a vested legal right. 
3)      Judicial review operates only on behalf of those who can demonstrate the violation of a vested legal right
(2)   Created authority for judicial review of executive actions.
1)      Court drew a distinction as to when the judiciary could afford relief: The judiciary could provide remedies against the executive when there is a specific duty to perform owed to a particular person, but not when it is a political matter left to executive discretion.
o   Here, delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provided him a remedy.
2)      Marbury thus establishes the power of the judiciary to review the constitutionality of executive actions.  Some actions – i.e., whether to veto a bill or who to appoint for an office – are entirely within the president’s discretion and cannot be judicially reviewed.  But where the executive branch has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus.  In the latter case, Court says that only the political process is the check on the executive branch. 
(3)   Sec. 13 authorizing mandamus on original jx was unconstitutional
1)      Having concluded that Marbury had a right to the commission and that the Court had the authority to issue mandamus as a remedy, the Court then turned its attention to the issue of jx.
2)      Court concluded that § 13 was unconstitutional because Congress cannot expand original jurisdiction beyond what Art. III provides, otherwise Article III’s enumeration of original jx would be “entirely without meaning” if Congress could add more areas of original jx.
3)      Marbury establishes that Art. III is the ceiling of fed jx.  Congress may neither expand nor contract the original jx of the Supreme Court.
(4)   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. 
1)      Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement. 
2)      It is inherent to judicial role to decide the constitutionality of the laws it applies – “emphatically the province and duty of the judicial department to say what the law is.”
                        Notes:
o   Politically, Chief Justice Marshall knew that a ruling in favor of Marbury would be futile; the Jefferson administration would ignore it, and that would undermine the Court’s authority at the beginning of its history. 
o   Indeed it can be questioned whether Justice Marshall should have recused himself because he was the Secretary of State who signed Marbury’s commission. 
C.          Authority for Judicial Review of State and Local Actions
a.      Marbury established only the authority for judicial review of federal executive and legislative actions. 
b.      Although the Constitution does not explicitly say that the Supreme Court may review state court decisions, § 25 of the Judiciary Act of 1789 provided for Supreme Court review of state court judgments involving federal questions. 
c.       Two other cases – Martin v. Hunter’s Lessee (1816) and Cohens v. Virginia (1821) – were key in establishing the Court’s authority to review state court decisions. 
d.      Martin and Cohens held that § 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 fed courts having greater independence from political forces than state courts
1.      Martin v. Hunter’s Lessee (1816) – two conflicting claims to land in Virginia. 
i)        SCOTUS held that the federal treaty was controlling and established the British citizen’s ownership. 
ii)      Justice Story articulated the Court’s authority to review state court judgments because the Constitution creates a Supreme Court and gives Congress discretion whether to create lower federal courts.  But if Congress chose not to establish such tribunals, then the Supreme Court would be powerless to hear any cases, except for those filling within original jx. 
iii)    Additionally, Justice Story explained the importance of Supreme Court review of state courts and is essential to

restricting the availability of judicial review.  In Allen v. Wright, the Supreme Court articulated that standing is “built on a single basic idea – the idea of separation of powers.”  The notion is that by restricting who may sue in federal court, standing limits what matters the judiciary will address and minimizes judicial review of the actions of the other branches of government.  However, concern for separation of powers also much include preserving the federal judiciary’s role in the system of government.  Standing thus focuses directly on the question of what is the proper place of the judiciary in the American system of government.
                                          ii.            Judicial Efficiency: Prevents a flood of lawsuits by those who have only an ideological stake in the outcome. 
                                        iii.            Improve Judicial Decision Making: ensuring that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter.  Court has frequently quoted its words from Baker v. Carr that standing requires that a P allege “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.
6. Requirements for Standing
1)   Standing is a threshold inquiry (i.e., prior to merits): in order for a fed court in any level to proceed to the merits, the court must have subject matter jx (either fed question, diversity, subject matter jx).  An indispensible part of subject matter jx is that it must be a “case or controversy” within the meaning of Art. III.
2)   Never an issue where damages are requested – only where injunctive and/or declaratory relief is requested!
·      Not clear that the Ds conduct has caused the P’s injury
·      Analyze standing on a remedy by remedy basis
·      Always have standing to sue for money damages
3)   Standing has both prudential and constitutional aspects
4)   Only need one P with standing.
5)   Constitutional standing requirements are said to be dictated by the “case or controversy” clause of Art. III. In Allen v. Wright, the Supreme Court identified three constitutional standing requirements which must be met for a federal court to hear a case:
1.      Injury-in-fact: The P must allege that the injury is caused by or “fairly traceable” to the D’s conduct.  In damages case that is more clear but in cases where the P is seeking an injunction, if the P is ideologically minded, sometimes there is not a clear causal link between what the D is doing and what the P claims the injury is.  Sometimes its likely attenuated and speculative.  The injury alleged must be “distinct and palpable” and not “abstract” or conjectural” or “hypothetical.”  Injury cannot be too abstract or otherwise not appropriate to be judicially cognizable. Requiring an injury is a key to ensuring that there is an actual dispute between adverse litigants and that the court is not being asked for an advisory opinion.  Purpose of injury requirement is to ensure that P is not an intermeddler, but rather someone who truly has a personal stake in the outcome of the controversy.