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Constitutional Law I
University of Illinois School of Law
Moore, Michael S.

Moore ConLaw Outline Spring 2013

Judicial Review

Section 1. Limits on Judicial Review

I. Political Question Doctrine

A. Textual commitment to non-judicial branch

1. Does the text of the Constitution commit the question before the court to another branch of the government?

2. If so, courts have no power of judicial review

B. Prudential considerations

1. Does prudence dictate that the Court does not interface, although not explicitly stated by the Constitution? It is political if:

a. Challenged action is that of co-equal branch

b. No standards for court judgment

c. Single, final voice needed

d. Court would overstep the checks and balances on its own power

e. Policy issue, not one of individual rights

f. Comity: lack of respect to another branch if issue were to be decided by a court.

g. Non-obviousness of any constitutional violation

h. Legislature can correct the problem itself w/o judicial review (Baker v. Carr a~h)

i. Court has no adequate ay to remedy this violation (Powell v. McCormack)

j. Review would interfere with court’s own essential functions (Nixon v. US)

k. Simply too hot to handle / hurt the court’s integrity

II. Cases and Controversies Doctrine

A. No Advisory Opinions

1. Advisory opinions: opinion about the constitutionality of a pending law

2. Article III §2

3. Test:

a. Must be an actual dispute between two litigants

b. Must be likely that a federal court decision in favor of a claimant will bring about some change or have some effect

4. Rule: In the federal government, SC is precluded from giving advisory opinions to the legislature

B. Standing: Whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues

1. Constitutional doctrines

a. Plaintiff must PERSONALLY suffer an injury or will suffer imminently (must be real and immediate, not conjectural or hypothetical)

– Actual or imminent

– Concrete and Particular

b. Proximate cause – trace injury to D’s actions.

– It cannot result from the independent action by someone that is not before court

c. Redressable by Court remedy

– Focus is more on remedy than liability

– As a matter of remedy, will the injury cease or be cured with court remedy?

– Court remedy will have little effect on injuries resulting from intervening causes

2. Doctrines of prudence

a. Party must assert only his or her own rights and cannot raise claims for 3rd parties

b. No generalized grievances (arguably a constitutional requirement) – P may not sue a taxpayer who shares a grievance in common with all other taxpayers

c. P must raise the claim with the zone of interest

3. Congress has the power to confer standing by defining injuries and articulate chains of causation to give rise to a case or controversy.

C. Mootness: an actual controversy must be extant to all stages of review not merely at the time of the filing.

D. Ripeness: dismissal for non-ripeness occurs when a controversy is not far enough along to require adjudication. This focuses on whether or not the injury has occurred yet.

– Factors:

1) How significant is the harm to denying judicial review

2) Probability of occurrence – how speculative and uncertain

Division of Powers (Federal / State)

· Constitution

o Article I §8 Necessary and Proper Clause: “All laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the U.S., or in any department thereof.”

o 10th Amendment: the powers not expressly delegated to the US by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people.

o Article 1 §10: expressly bars states from treaties, coining money, granting titles of nobility, and requires congressional consent before states may impose customs duties, interstate compacts, or engage in war.

o Federal government’s power – explicitly enumerated or implied under the necessary and proper clause.

· Federal Power

1. Enumerated Powers: Art. I, II, III

a. Congress: §8, Limitations §9

b. Implied powers are implied generally – because it is necessary to the execution of the enumerated powers OR

2. Necessary and Proper

a. McCulloch – grant of power is implied generally in the N&P clause

b. But also an implied limitation – not a reservoir of power

· State Power

1. Art. I §10 Express Limits on State Power

2. 10th Amendment: Reserves what they had before the Constitution was formed except what they had granted to the federal government

a. States have power from the people who formed them

· Two Questions:

1. Has Congress lawfully executed some power?

2. If yes, is the state precluded from acting?

· Maryland v. McCulloch

1. Facts

a. Maryland sought to enforce one of its statutes, which imposed a tax on banks operating within the state but not chartered by the state, against the Bank of the United States and McCulloch, it’s cashier in Baltimore.

b. The statutes were aimed at excluding the Bank of US from operating branches within those states.

c. McCulloch refused to pay tax.

2. Issues

a. Whether the Bank of US is the legitimate creation of a US power (Yes)

b. If so, whether a state can tax a federal institution (Yes)

3. Holding: power to create a bank is not one of the enumerated powers of Congress found in Art. I §8. However, the necessary and proper clause shows that the enumerated list is not exhaustive. Even without n/p clause, the document to have any meaning must imply that the branches must have the power to effectively carry out such powers.

4. Q1. Valid National Power?

a. Can Congress charter a bank? Yes, although this power is not enumerated. Congress has the power to incorporate a bank because this is always a means to accomplish an end. Even without the necessary and proper clause, this would be an implicit power

· Necessary and proper clause: justifies Congress’ power to charter a bank in order to execute the following enumerated powers: taxation, regulation of commerce, war.

· Marshall would argue this power even without the necessary and proper clause.

i. Intent

1) Was there any?

– Intended N&P clause to be broadly construed – otherwise Congress would be trapped by limited powers

2) Helpful

– Some justices said it was stupid to look at framer’s intent, because the only thing they could agree on was the actual words of the text

– It their intent was included in the constitution, a particular act may not have passed at all, so it’s all a bunch of compromise

3) Authoritative

– The framers agreed on the text, and we know what the overall goals of the constitution were, so their intent was to help the country succeed, so the clause must be construed broadly enough to enable that

ii. General Reasoning

Because there is doubt as to the authoritativeness of the intent, Marshall considers the overall purpose of a constitution

1) Of this Constitution

– This Constitution means congress’ powers are limited and enumerated, so there has to be some sort of discretion for congress to do what it thinks is necessary – even if not absolutely necessary – so Congress has the ability to create the bank

b. McCulloch’s Test of Congressional Implied Power

Means-ends test: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”

Under this test, a federal act is valid as long as it bears a reasonable relationship to an enumerated power of the fed government

i. Ends

1) Isolate the enumerated power


English language so compelling so that adding a requirement is barred, just as subtracting from them are?

vi. As a matter of ordinary English, the requirements are open to others

vii. The 3 are merely the minimum

b. Precedent

i. Powell

1. Each house of Congress could not impose qualifications other than those set forth in the Constitution

2. The federal government cannot do it nor can the states

c. Default rule: if text is silent on a power, then what?

i. On Congressional power? Figure out on own if there is implied power.

ii. On State power?

1. Possibilities

a. Majority: no power unless originally there

i. Stevens if constitution is silent about something, then states retain original powers that they had before constitution was created. If states didn’t have that power in 1787, then they don’t have it today. Therefore, they don’t have it today.

ii. The lack of power of the federal government does not imply that the state has that power (much like Vision #2)

b. Dissent: power exists in state if federal government lacks it

i. Thomas: federal government only has limited delegated powers & states have a right to resist unconstitutional exercises of federal power. Anything constitution doesn’t expressly withhold from states & doesn’t grant to Congress belongs to the states. So, basically if feds don’t have power states do (much like Vision #1)

2. Right reading of McCulloch?

a. Majority’s view similar to McCulloch

b. Just because fed don’t have the power, doesn’t mean that the states automatically do

c. But dissent says this is an improper reading of McCulloch, because that was a regarding a statute and this is purely constitutional issue

iii. Intent of Framers

1. Fearful that Congressmen would keep adding on qualifications that fit them

2. Only 3 qualifications in Article I, so that means they intended these to be the only qualifications and Congress can’t add

iv. Policy: term limits – a good idea?

1. They say it’s necessary to reserve this power to fed because if individual states could set their own requirements for their representatives, this would undermine the uniformity and national character that the framers envisioned and sought to ensure

v. Structure of Constitution as a whole (Marshall’s “general reasoning”)

1. Review: Structural argument in McCulloch?

– When you are discussing 2 sovereign entities, the one with the smaller population base cannot tax the structure of the other one because they would get the benefit of the tax and none of the burden

2. Here?

a. The representatives belong to all people, not just those of AR; the entire country shouldn’t have the burden of degraded quality of representative just because AR is benefiting from term limits.

b. It they only affected AR, they’d probably be fine

5. Need for judicial review here? Congress can preempt the state here?

a. The need for judicial review is to determine if what the state is doing is kosher with the Constitution

b. Congress can’t preempt the state here because congress doesn’t have the authority to change the qualification requirements, but neither do the states