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

Judicial Review
        I.        Marbury v. Madison (Supremacy Clause)
       II.        Avoidance Principle
      III.        Martin v. Hunter’s Lessee
      IV.        Congressional Control of Judicial Review
       V.        Political Question Doctrine
National Legislative Power
        I.        Maryland v. McCulloch: Necessary & Proper Clause
       II.        Commerce Clause
      III.        Taxing and Spending Power
      IV.        Property Clause
       V.        Treaties as Sources of Legislative Power
      VI.        Intergovernmental Immunities
State Power to Regulate
        I.        Dormant Commerce Clause
       II.        States as Market Participants
      III.        Interstate Privileges & Immunities
Substantive Protection of Economic Interests
        I.        Substantive Due Process
       II.        Contracts Clause
State Action
        I.        State Action Doctrine
       II.        Traditional Government Function
      III.        State involvement or Encouragement
Congressional Enforcement of Civil Rights
        I.        Thirteenth Amendment
       II.        Fifteenth Amendment
      III.        Fourteenth Amendment
      IV.        Eleventh Amendment Immunity Abrogation
Separation of Federal Powers
        I.        Foreign Affairs Power
       II.        War Powers & Terrorism
      III.        Delegation Doctrine
      IV.        Legislative Veto & Line Item
       V.        Appointments & Removals
      VI.        Executive Privilege & Immunity
Limitation of Judicial Review (Advisory Opinions)
        I.        Standing
       II.        Mootness
      III.        Ripeness
Judicial Review
Judicial Review is the power of the Court to enforce the Constitution against some other act of the government.
      I.        Marbury v. Madison (p. 1): The Supreme Court has the power, under the Supremacy Clause (Art. VI, § 2) of the Constitution to review acts of Congress and can strike down something that violates the Constitution.
A.     Supremacy Clause: The Constitution, laws of the United States, and its treaties are the supreme law of the land and binds everyone in the states, regardless of state law.
B.     Marbury has never been overruled and its principle is now read into the Constitution.
                                         1.    Some say that this was a power grab by Marshall.
                                         2.    Judges are not elected so it might be undemocratic and they have life tenure and do not have to answer to the voters. But on the other hand, they are appointed by the President and approved by the Senate who are accountable to voters.
     II.        Avoidance Principle: The courts should avoid making Constitutional decisions when they can in an effort to conserve their “political power” for striking down statutes when they really need to.
A.     They have limited “credits” to strike down statutes enacted democratically and would upset the public if they did so regularly.
B.     Judges are not elected but rather depends on its stature for its power (it controls neither the purse nor the sword).
    III.        Martin v. Hunter’s Lessee (p. 16): The appellate jurisdiction of the Supreme Court includes decisions made by state courts as long as the decision is final (no other courts can hear an appeal, i.e. state supreme courts).
A.     Congress intended to give the Supreme Court the power to review state decisions that contravened federal law; codified under Judiciary Act § 25.
B.     Congress’ was granted the authority to do so under Art. III, § 2 (Congress has the power to define appellate jurisdiction of the Supreme Court).
C.    State courts can decide any federal issues but they must follow the U.S. Constitution.
    IV.        Congressional Control of Judicial Review: Ex Parte McCardle – was a habeas corpus case that M seemed like he was going to win on the merits and decide some big constitutional issues. After the case was heard but before the decision came down, Congress enacted an amendment that said the Supreme Court does not have jurisdiction to hear habeas corpus cases, effectively immediately. The amendment controlled and the Court dismissed for lack of jurisdiction.
A.     Congress has the power to take away appellate jurisdiction from the Supreme Court (Art. III, § 2).
                                         1.    Though they can technically do this, Congress does not do this often since it seems to be an unfair manipulation of rules and politically, would not be a good idea to do this often.
                                         2.    Courts are politically protected due to the respect they command.
B.     Congress can strip lower courts of jurisdiction to hear cases (and in fact can eliminate them entirely since the Constitution only requires a Supreme Court and does not require lower courts).
C.    If they did so, the only remedy would be to go to state courts who would not have new precedent to follow since the Supreme Court lacks jurisdiction and no new law would be possible, leaving whatever the last ruling was as the final say on the matter.
     V.        Political Question Doctrine: (1) The Constitution says that these issues are decided in another branch or (2) Lack of judicially discoverable and manageable standard for resolving it (courts would not be able to act in a judicial way because of a lack of measureable standards). Baker v. Carr (p. 22)
A.     The Court will not review political questions and will give full deference refusing to look at the merits.
                                         1.    The Courts decide whether something is a political question or not.
B.     Nixon v. United States: N impeached for accepting bribes. Claims his trial was not fair since it was by committee rather than the full senate. Court holds that this was a political question since Constitution states the Senate decides how to run impeachment proceedings.
                                         1.    “Senate shall have the sole power to try all impeachments.”
                                         2.    To allow review would imbalance the check the Senate has on the judiciary branch (Judges get a say in how judges are impeached?).
C.    Types of political question cases
                                         1.    Impeachment cases
                                         2.    Amendment process cases
                                         3.    Foreign relations, military issues and diplomatic questions are generally political questions
a.     Getting judicial involvement is a bad idea because the U.S. should speak with one voice. It would be bad if the President said one thing and the Court said another.
D.    Political question only applies to Constitutional issues; if the Court decides it wrong, there is no one to overturn other than constitutional amendment. With a statute, this problem does not exist since Congress can just overturn with a statute.
E.     Cases
                                         1.    Baker v. Carr: Legislative apportionment was not a political question because there were judicial standards under the Equal Protection Clause.
                                         2.    Pacific States Tel. & T. Co. v. Oregon: Constitution guarantees a republican form of government. Citizens enact a law taxing phone companies through an initiative (rather than elected officials enacting the law). P challenges that it wasn’t a republican form of government and should be struck down. Court says this is a political question for Congress to decide.
                                         3.    Goldwater v. Carter: President’s power to rescind treaties is not mentioned in the Constitution
                                         4.    Courts cannot define “war” regarding Congress’ power to “declare war” but they can do so regarding a statute to pay benefits for “war” veterans.
                                         5.    Colemen v. Miller: NV ratifies an amendment then later decides to un-ratify it. Their vote would have been the 38th state. Court refused to hear it citing political question.
                                         6.    Bush v. Gore: “Who is the President” regarding recounts (though politically charged) was not a political question.
                                         7.    Veith v. Jubelirer: Gerrmyandering of voting districts is a political question unless it goes “too far”
    VI.        Discretionary Review
A.     To get review in the court, you need four justices to grant certiorari – this isn’t provided for in the Constitution, it is just customary.
B.     The court has reduced its case load from about 150/yr. in the 1970s to about 75/yr. nowadays. Court overlooks cases that need to be overturned sometimes – so a denial of Cert. doesn’t really mean anything.
National Legislative Power
What is the power of Congress in relationship to the states? The more that Congress can do, the less th

e less deferential to precedent when deciding constitutional issues (as opposed to common law or statutory interpretation) because they are the only ones who can change it short of an amendment.
I.      Wickard v. Filburn (p. 60): Established the aggregation principle which said that Congress’ authority extended to activities, if in the aggregate, that have a substantial effect on interstate commerce.
                                         1.    While the one person’s wheat production was likely trivial, taken together with everyone else doing it would have a substantial impact on interstate commerce.
J.     Heart of Atlanta Motel v. U.S. (p. 62): Congress does not need to show anything. The Court just needs to find that they could have had a rational basis for its decision (high deference).
                                         1.    Katzenbach v. McClung (p. 64): As long as Congress can show a rational basis for finding a regulatory scheme necessary to the protection of commerce, then the regulation is valid.
a.     Regulated restaurants that served interstate travelers or had a substantial portion of their food that was moved through interstate commerce.
K.     U.S. v. Lopez: Regulating guns near schools was beyond the Commerce Clause.
                                         1.    Congress said that guns make schools dangerous, which means less students, which means less smart people which affects the economy/interstate commerce.
                                         2.    Court rejected this because it “proves too much” as this argument would allow Congress to regulate anything with the possibility of violence.
                                         3.    Might have been different if they regulated guns that traveled through interstate commerce.
L.     U.S. v. Morrison (p. 66): Violence against women tort was too attenuated for the commerce clause. The activity must be economic in nature.
                                         1.    The court could have said rational basis but in 1994-95, there was a revival of states’ rights and an anti-national government sentiment. This lead to a tweak to the interpretation on the reach of the commerce clause.
M.    Gonzales v. Raich (p. 76): Aggregate marijuana growth affects interstate commerce.
N.    Sebelius: Congress cannot mandate action with the Commerce Clause where someone chooses inaction.
                                         1.    Part II: Congress can regulate healthcare because it has a huge effect on interstate commerce and if universal healthcare is a “necessary and proper” way to regulate it, then it is allowed.
O.    Endangered Species Act that protects a particular rare species of plant or animal without commercial value that is only on a small parcel of land.
                                         1.    All lower courts have upheld this (but with dissents), either deferring to Congress (pre-Morrison/Lopez) or Congress has said that it has an economic effect (Leshy does not like this argument).
                                         2.    The Court has not reviewed this because all circuits have upheld it.
P.     Can Congress make an activity a federal crime if it involves cell phone networks that cross state lines?
                                         1.    Possibly, because of the state boundary.
Q.    Congress has not displaced many area of state law (tort, contracts, products liability etc.) because there is an impulse to protect state powers due to political reasons and the people vote these laws in. Furthermore, the states are more local so it is more efficient to let them govern.