Con Law I
Coenen – Fall 2014
Intro to Federalism
Constitutional Government
I. National/Federal Government
a. Constitution: creates a national government and divides power among three branches
i. Legislative: Article I creates the legislative power and vests it in Congress
ii. Executive: Article II places the executive power in the President
iii. Judicial: Article III places judicial power in SCOTUS and such inferior courts as Congress creates
b. Rationale/Justifications – Federalist Papers No. 10 (Madison)
i. Usurpation of Power: concerned w/one branch taking too much power from another
ii. Protection of Individual Liberties: concerned w/tyranny of the majority
II. Division of Power (Checks & Balances)
a. Federalism (Vertical Checks): division of authority b/w states and federal governments
i. Enumerated Powers (Federal): Art. I § 8 enumerates specific federal powers
1. Supremacy Clause: Art. VI states federal law is supreme law of the land
a. Preemption: derived from supremacy clause – if there’s a conflict b/w federal and state law à federal wins, state trumped/displaced
2. Lawmaking Power: Article I § 8 provides law making power
3. Bill of Rights: Amend. I-X limit powers of the federal government and Congress
ii. Reserved Powers (States): Amend. 10 reserves all other powers to states
1. Police Power: traditional power reserved to the States
b. Separation of Powers (Horizontal Checks): division b/w branches of federal government itself
i. Checks on Legislature
1. Executive Veto Power: president may veto legislation Congress passes
2. Judicial Review: SCOTUS may overturn legislation as unconstitutional
3. Internal Checks: House and Senate have checks on each other
4. Elections: legislative authority derived from the will of the body politic
ii. Checks on Executive
1. Legislative Override: 2/3 vote overrides executive veto
2. Amendments & Limitation: executive power may be legislatively limited
3. Elections: executive authority also derived from the will of the body politic
4. Impeachment: president may be impeached by House and tried by Senate
iii. Checks on Judiciary
1. Executive Appointments: president appoints justices, senate confirms
2. Appellate JXN: congress has power to take away appellate jxn
3. No. of Justices: congress has power to increase/decrease # of justices
4. Impeachment: congress has power to impeach justices as well
5. Enforcement: executive does not have to enforce SCOTUS rulings
Federal Judicial Power
Federal Judiciary
I. Defined: judicial branch established by Constitution consisting of Supreme Court and lower courts
a. Art. III: creates the federal judiciary and defines its powers
i. Judicial System: judicial power of federal government vested in third branch
1. Independence: ensured by giving judges life tenure during “good behavior,” and salaries that cannot be decreased during their time in office
a. Guard Constitution: uniquely suited to protect constitutional rights
b. No Electoral Accountability: not subject to review by body politic
2. Structure: judicial power vested “in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish”
a. Convention Compromise (Madison/Wilson): existence of Supreme Court mandated, Congress can decide on inferior courts later
b. Judiciary Act 1789: established lower federal courts, existed ever since
II. Judicial Power: Art. III § 2 defines in terms of two types of “cases and controversies”
a. Authority: powers limited to two major types of “cases” or “controversies”
i. Federal Gov’t: authorized to vindicate and enforce powers of federal gov’t
1. Laws: jurisdiction to hear cases “arising under” the Constitution, treaties, and laws of the U.S.
2. Parties: cases where U.S. is a party
3. Foreign Affairs: protects federal foreign policy, hearing cases
a. Officials: cases affecting ambassadors, etc.
b. Maritime: cases w/admiralty or maritime jurisdiction
c. Cases: b/w a state (citizens) v. foreign gov’t (citizens)
ii. Interstate Umpiring: resolve disputes b/w states and their citizens
1. States: resolve cases b/w two or more states
2. Land: citizens of the same state claiming land in other states
3. Citizens: cases b/w/ state and citizens of another state
a. 11 Am: basically overturned by stating power doesn't extend to cases b/w state and citizens of a different state
b. Allocation of Power: power allocated b/w Supreme Court and lower federal courts
i. Supreme: original + appellate jurisdiction – exceptions regulations by Congress
1. Original: cases affecting ambassadors, other public ministers and consuls, admiralty/maritime cases, and cases b/w state, or its citizens, and a foreign country or its citizens
a. Practically: original jurisdiction limited to disputes b/w two or more states
2. Appellate: all other cases, as to law and fact, subject exceptions and regulations of Congress
ii. Lower: concurrent jurisdiction + Congress’ expansions
1. Concurrent: Congress can allow lower courts to hear cases where Supreme has original JXN
III. Limits on Judicial Power: federal courts are courts of limited jurisdiction
a. Internal Constraints: power limited by Congress, Constitution and Judicial Doctrine (Justiciability)
i. Subject Matter Jurisdiction: may only hear matters w/both constitutional & statutory authorization
ii. Justiciability: judicial doctrines restricting access to federal courts (see below)
b. Political Constraints: powers restricted and limited by political considerations
i. Selection Nomination & Confirmation Process: Art. II § 2 cl. 2 provides appointment of Justices will not be effective unless President obtains the “Advice and Consent of the Senate”
ii. Impeachment: Art. III § 4 provides that any officer of U.S. may be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors
iii. Court Packing: Art. III § 2 gives Congress power to alter size/budget of Court
iv. Court Stripping: Art. II § 2 gives Congress power to make exceptions to Court’s appellate jurisdiction
1. Ex Parte McCardle: Court couldn't hear habeas petition of prisoner after Congress stripped Court of the power to hear post-Civil War reconstruction cases
v. Constitutional Amendments: Art. V allows amendments to Constitution that can potentially overturn Court’s opinions in two ways
1. Congress, by 2/3 vote proposes amendments for ratification by ¾ of states
2. 2/3 of states may apply to Congress to call a Constitutional Convention
Judicial Review
I. Defined: power to measure the constitutionality of federal or state laws, or executive actions
a. Constitutional Silence: Art. III does not expressly grant power of judicial review
i. Shared Understanding: courts already possess authority à unnecessary to enumerate
ii. Failure to Consider: courts assumed not to have authority à didn't draft in Constitution
b. Central Themes/Analysis: common justifications and rationales throughout
i. Separation of Powers: proper role of judiciary in tripartite scheme of government
ii. Federalism: determining proper authority concerning federal vs. state courts
1. Federal Interest: protect interest of federal gov’t from state intrusion
2. Usurping Power: preventing federal courts from taking power reserved to states
II. Judicial Review Over Congressional Acts
a. Rule: Supreme Court has power to review the constitutionality of legislative and executive acts
i. Marbury v. Madison: establishes judicial review over legislative and executive acts
1. Jefferson instructed Sec. of St. Madison to withhold delivery of Marbury’s judicial commission by Adams. Marbury sued for writ of mandamus to compel delivery of the commission.
a. Judiciary Act 1789 § 13: authorized Court to grant mandamus in proceeding initially filed in Supreme Court
2. Held: Court can constitutionally review nondiscretionary executive acts
a. Legal right to commission? à yes, all appropriate measures followed, commission complete and creates vested property right before receipt
b. If yes, is there a remedy? à yes, can issue writ of mandamus
c. Is Mandamus proper? yes, this is a nondiscretionary action so it may be enforced against the executive; if discretionary, then no b/c it’s political
3. Held: Court can constitutionally review legislative acts
a. Original Jurisdiction? à yes, granted by statute, i.e. Judiciary Act
b. Violate Art. III? à yes, Art. III § 2 enumerates specific original jxn, gives appellate jxn otherwise, Congress can’t enlarge original jxn
c. Unconstitutional? à yes, Court can declare provision unconstitutional
i. Textual: Constitution is supreme law of the law, it imposes limits on government’s powers, ruling otherwise makes it meaningless
ii. Structural: judicial review is in keeping w/checks and balances of government
iii. Implication: authority to decide “cases” arising under Constitution implied power to declare conflicting laws unconstitutional
iv. Historical: several pre-constitutional state courts invalidated state legislation, so historical application justifies current practice
ii. Rationale/Justifications & Criticisms: for and against judicial review
1. Preserve Constitutional Interest: the Constitution is expression of the will of the body politic, and judiciary ensures its preserved for future generations
2. Separation of Powers: independent judiciary more capable than potentially self-serving Legislature interpreting Constitution to fit w/their laws
3. Not Enumerated: power not explicitly granted by Constitution
4. Counter-Majoritarian Issue: unelected judiciary not subject to will of body politic
5. Limitless: judicial is self-created, not limited
III. Judicial Review Over State Courts
a. Rule: Court has power to review both civil and criminal state court decisions for constitutionality
i. Martin v. Hunter’s Lessee: two conflicting claims to land w/in Virginia. Martin claimed title based on inheritance from Lord Fairfax. Hunter claimed Virginia had confiscated and sold.
a. Va Ct: ruled for Marin, favoring state’s authority to take/dispose of land
b. SCOTUS: reversed, held Martin had valid inheritance
c. VA Ct: refused to obey; says SCOTUS lacks authority to review state court
2. Held: Judiciary Act 1789 § 25 & Constitution grant the Court the authority to review state court decisions under its appellate jurisdiction
a. Textual: Art. III § 2 gives “power…to all cases…all have appellate jxn”
b. Structural: Constitution has several provisions restraining states
c. Pragmatic: if Congress didn’t create lower courts, and Court couldn't hear state court decisions, Court would be almost entirely useless
the future.
ii. Sufficient injury: injury must be to judicially cognizable interest to a “recognized” right
1. Common Law: injuries stemming from a violation of rights recognized at common law, i.e. property, contracts, and torts are sufficient
2. Constitutional: injury to right created by the Constitution sufficient if (1) constitution bestows the right, and (2) merits of the case show right was violated
3. Statutory: right created by statute sufficient if ≠ exceed constitutional authority
4. Other: no distinct principle, the Court has recognized sufficient interests in…
a. Aesthetic Harms
b. Environmental Harms
c. Economic Harms
d. Voter Dilution
b. Lujan v. Defenders of Wildlife: the Sec’y of Interior promulgated a regulation that § 7 of the Endangered Species Act as applicable only w/in the U.S. The πs, wildlife conservation orgs, sought declaratory judgment that the regulation applies outside the U.S. as well
i. Held: Court rejected suit as not meeting constitutional requirements of injury or redressability à congressional authorization cannot overcome constitutional req.
1. Personal Injury: π’s claim of not being able to see animals insufficient b/c…
a. Abstract: no definitive plans to return to habitats of animals à didn’t demonstrate “imminent” injury
b. Not Concrete: not directly affected apart from special interest in the subject à didn't demonstrate particularized injury
i. NB: person who observes animals in the area of the world where species is threated = sufficient injury
2. Procedural Injury: ESA says “any person may commence civil suit” à Congressional authorization ≠ overcome constitutional requirements
a. Art. III: Congress may not give a greater right than the Constitution allows à Congress can only statutorily abrogate prudential limitations
b. Kennedy (concurrence): Congress must at least articulate the injury it seeks to vindicate when giving standing
c. Blackmun (dissent): Congress intended to strengthen procedures by giving private right to sue.
c. Massachusetts v. Environmental Protection Agency: a group of state, municipalities, and private organizations alleged that the EPA had abdicated its responsibilities under the Clean Air Act by failing to promulgate regulations dealing w/greenhouse gas emissions and global warming
i. Held: Court finds sufficient injury for standing
1. Injury: Mass. has injury in fact b/c its shoreline is eroding due to global warming
2. Distinguish Lujan: state is seeking remedy à different standard of justiciability
a. NB: if Mass didn't own any land in state, could sue in parens patriae
d. Warth v. Seldin: organizations brought action against town for failure to have housing for low/mod-income families.
1. Individual πs: alleging they are being excluded from living in town
2. Taxpayers πs: neighboring municipality alleging taxes going up b/c of policy
3. Buisness Associations πs: alleging they are being excluded from town
ii. Held: individuals must show they have suffered injures, not that people like them have suffered injuries à none of individual πs here leased or tried to buy a home in city, or had been denied a permit by the city, etc.
1. NB: other π’s addressed below
III. Causation: Constitutional Requirement
a. Rule: π must allege the personal injury is “fairly traceable to the ∆’s allegedly unlawful conduct”; focuses more on liability than on remedy
i. Direct: there must be a direct connection b/w injury and alleged conduct, i.e. reminiscent of tort law’s intervening causes and empirical causes sufficient for proximate injury
ii. Certain: connected to redressability à connection b/w injury and conduct is fairly traceable only if taking away the alleged conduct = appreciable difference (like but-for)
b. Allen v. Wright: parents of black public school children allege failure of IRS to carry out obligation to deny tax-exempt status to racially discriminatory private schools, π claimed by providing subsidized alternative of segregated private schools injury:
1. IRS made task of desegregating public schools more difficult, and
2. Diminished children’s quality of education
ii. Held: no standing b/c cannot prove causation, despite alleging sufficient injury à the links in the chain of causation b/w conduct and asserted injury too weak
1. Indirect: injury is indirect & results from ind. action of some third party not before the court.
2. Uncertainty: “fairly traceable” to conduct only if enough racially discriminatory private schools receiving tax exemptions to make appreciable difference à uncertain how many schools receive exemptions
c. Warth v. Seldin: individuals lack causal relationship à even if municipality changes their zoning, there is no evidence lower income people would move there
