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Constitutional Law I
University of Dayton School of Law
Kloppenberg, Lisa A.

Constitutional Law
Spring 2011
I.            Authority for Judicial Review
Marbury v. Madison (p.2)
Tool: Judicial Review: (1) The Supreme Court has the authority to declare unconstitutional; (2) legislative or executive acts that are in conflict with the constitution; and (3) to refuse to enforce them.
(Ct. held that congressional grant of jurisdiction through Judiciary Act in conflict with Article III, § 2 of the Constitution) 
A.              Judicial Review of State Judgments
Martin v. Hunter’s Lessee (p.10)
Tool: The Supreme Court has authority to review decisions of a state’s highest court.
(Conflict between federal treaty and state’s SC decision regarding British citizen’s land)
1.                 Judicial Review of State Criminal Judgments
Cohens v Virginia (p.10)
Tool: The Supreme Court has authority to review decisions of criminal cases of a state’s highest court.
(2 brothers selling lottery tickets in DC)
II.            Requirements of Justiciability
Requirements of Justiciability [Elements that Limit cases SC will hear]:
1.      Prohibition against Advisory Opinions: the federal courts may not issue opinions based on abstract or hypothetical questions because their jurisdiction is limited to “cases and controversies.”
2.      Standing: P must have a significant stake in the controversy.
3.      Mootness: a case is moot if events occurring after the filing have deprived the litigant of an ongoing stake in the controversy.
4.      Ripeness: a case is NOT ripe if it has not yet become sufficiently concrete to be easily adjudicated.
5.      Political Question Doctrine: certain issues are held to involve non-justicable political questions (i.e. issue belongs in the Congress or Executive).
A.              Prohibition of Advisory Opinions (FOCUS ON)
Prohibition against Advisory Opinions: the federal courts may not issue opinions based on abstract or hypothetical questions because their jurisdiction is limited to “cases and controversies.”
Nashville v. Wallace (p.45)
Tool: a case is justiciable if it retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy.
·         Substance over form
(Company sought declaratory J)
B.              Standing (I C Redress)
3 Constitutional Standing Requirements P Must Allege:
1.      Injury in Fact: P must show that he himself has been or imminently will be injured in some way by the conduct he complains of.
2.      Cause in Fact: P must allege that his injury is traceable to the D’s conduct.
3.      Redress: P must allege that a favorable federal court decision is likely to redress the injury.
Allen v. Wright (p.46)
Tool: an asserted right to have the Government act in accordance with law, without actual injury, is not sufficient to confer jurisdiction on a federal court.
(P’s alleged that IRS not enforcing antidiscrimination policy against private schools that are tax exempt injured their children; ct held that P’s did not have standing because injury was not sufficiently traceable)
1.                 State as P
Massachusetts v. EPA (p.53)
Tool: (1) When the P is a state acting on behalf of its citizens; (2) the 3 constitutional requirements of standing may be relaxed.
(11 states sued EPA, arguing EPA was required to issue regs that would limit automobile emissions of CO2; ct relaxed standing requirements and held states had standing)
I.            Selective Incorporation Against the States
Selective Incorporation: (1) Each Right in the Bill of Rights is examined to see if it is of “fundamental” importance; (2) if it is determined to be of “fundamental” importance, then it is selectively incorporated into the meaning of due process in the 14th Amendment; and (3) thus made binding against the state.
II.            Reverse Incorporation Against the Federal Government
Reverse Incorporation: the Equal Protection Clause of the 14th Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment.
Federal Executive Power
III.            Intro – Prof Comments
4 Theories of Executive Power:
        Prof. Comment
No Inherent Executive Power
2.      Gap-Filling Execu

been replaced by the “Intelligible Standards” Doctrine, supra.
o   Is essentially free pass to allow all delegations
B.              The Demise of the Legislative Veto
INS v. Jagdish Rai Chadra (p.347)
Tool: The legislative veto violates the Presentment Clause (Art. I, § 7, cl. 2) and it violates the bicameral requirement (Art. I, §§ 1 and 7).
(ct held legislative veto unconstitutional; dissent argued it was not the functional equivalent of passing a law)
VI.            Separation of Powers and Foreign Policy
US v. Curtiss-Wright Export Co. (p.370)
Tool: The very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations gives him greater discretion and freedom from statutory restriction.
·         I.e. the President HAS broad discretionary power regarding foreign relations
o   This is a different standard than when domestic affairs alone are involved.
(D charged with conspiring to sell arms to country that President prohibited through power granted him in joint resolution; D challenged resolution on basis that it was unconstitutionally broad delegation; ct upheld the resolution)
A.              Treaties and Executive Agreements
Treaties: require 2/3 vote by the Senate
Executive Agreements: Agreement between US President and a foreign country that is effective when signed.
B.              Implied Acquiescence by Congress
Dames & Moore v. Regan (p.374)
Tool: An action will be deemed within the President’s constitutional authority where: (1) a President’s conduct; (2) is a necessary incident to the resolution of a major foreign policy dispute; AND (3) Congress has acquiesced in that type of Presidential action.