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

Con Law Outline Main
Michael Moore
Spring 2011
Part I: initial set-up, judicial review, supremacy clause, etc.
Ø  Marbury v. Madison (1803)
ü  The commission was valid, the remedy was proper, but
ü  The writs of mandamus could not come from the Supreme Court since it does not have original jurisdiction over such writs, therefore
v  The Judiciary Act of 1789 is unconstitutional
v  Because it sought to confer on the Supreme Court original jurisdiction over a type of dispute over which the Constitution gave it only appellate jurisdiction
ü  Marshall essentially said that we don’t have the power, but we can tell Congress what power we do or do not have
ü  Congress can neither expand nor restrict the original jurisdiction of the Supreme Court.
v  However, the Court's appellate jurisdiction is given “with such exceptions, and under such regulations as the Congress shall make.”
Ø  Marbury established the power of judicial review
ü  Allocation of power ßà protection of rights
ü  Judicial Review forced Nixon to turn over the tapes – what if there wasn’t a power of judicial review
ü  Supreme Law of the Land
v  If the Constitution is the highest law of the land, it inevitably overturns anything that is in conflict with it
Ø  Martin v. Hunter’s Lessee (1816) supremacy clause: the first case to assert ultimate Supreme Court authority over state courts in matters of federal law
ü  States are fallible in that ‘state attachments, state prejudices, and state interests might sometimes obstruct, or control . . . the regular administration of justice’
ü  Ensuring uniformity in interpretation of federal law across state lines
ü  Since it was established that the States had the power to rule on Federal issues it must be true that the Supreme Court can review the decision or the Supreme Court would not have appellate jurisdiction in “all other cases.” 
Ø  Cooper v. Aaron (1958)
ü  After Brown v. Board, Arkansas attempted to disregard desegregation orders, because the other case occurred in another state, and thus the S.C.s decision did not apply to itself
ü  Wrong! à supreme law of the land
Ø  Bindingness of the Supreme Court: other branches’ power of independent constitutional interpretation / checks on the judiciary
ü  Congressional: Dickerson v. United States (2000) Congress has the power to overrule a Supreme Court decision through an amendment, but not by statute
v  Eleventh overruled Chisholm, Fourteenth overruled Dred Scott, Sixteenth circumvented Pollock v. Farmer’s Loan & Trust Corp., Twenty-Sixth overturned Oregon v. Mitchell (1970)
ü  Supervisory/administrative regulations of the court can be overruled, but interpretations of the Constitution cannot
ü  Executive example 1: Jefferson, after pardoning many convicted during the Adams administration, stated ‘the judges believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided in him by the Constitution.”
ü  Executive example 2: Jackson vetoed a bill to recharter the Bank of the United States in 1832, even though the Supreme Court in 1819 had held the establishment of the Bank within the constitutional authority of Congress
ü  Executive example 3: in overturning Dred Scott, Lincoln stated that an angry mob cannot oppose the decision of the Court, however, it is a better practice to allow such fundamental decisions to be open for debate in the future, otherwise the people will cease to be their own rulers
ü  Executive example 4: after the Court in 1935, in a decision Schechter Poultry Corp. v. United States, invalidated the National Industrial Recovery Act, part of New Deal emergency legislation, Roosevelt insisted Congress to pass another similar NIRA scheme
v  Insisted that he’s got the right to interpretation as well, so pass the legislation, and the Court can tell us what’s wrong with it again
ü  Executive power to veto/pardon is explicit in the constitution and can be exercised freely so long as there is no blatant defiance
Ø  Political restraints (external limitations)
ü  Ex Parte McCardle (1869)
v  By repealing the act which granted the Supreme Court authority to hear the case, Congress made a clear statement that they were using this Constitutional authority to remove the Supreme Court's jurisdiction
ü  Court-stripping: general power of Congress to create appellate ‘exceptions’ for the Supreme Court
v  Does the Constitution provide in the ‘exceptions clause’ Congress with the power to strip Supreme Court of all appellate jurisdiction
v  ‘Exceptions’ power of Congress may not be exercised in a way that would interfere with the ‘essential’ or ‘core’ functions of the Court or ‘destroy the essential role of the Supreme Court in the constitutional plan’
ü  United States v. Klein (1871) the legislative branch cannot impair the exclusive powers of another branch
v  Congress may not direct the outcome of a case by prescribing the rule of decision, nor may Congress impair the power and effect of a Presidential pardon
Part II: Justiciability
Ø  Prudential restraints (internal limitations)
ü  Toe-stepping
v  An action of a co-equal branch
v  Overstepping checks & balances
v  Lack of respect to another branch if issue were to be decided by a court
Ó The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government
v  Different from political question, because the division of power is not textually committed
ü  No judicially discoverable standards for court judgment
ü  Court has no known effective remedy for the violation
ü  Single, final voice: sometimes swift action is called for, not one of the features of the courts
v  Foreign relations, though a prudential consideration at most, do call for official, unambiguous statements
v  ‘The potentiality of embarrassment from multifarious pronouncements by various departments on one question’ Baker v. Carr
ü  Policy issue, not one of individual rights
ü  Non-obviousness of any constitutional violation
Ø  Constitutional restraints
ü  Political question
v  Distinguishing legal questions (reserved for the courts) from their counterpart political questions reserved for resolution by the political processes
v  Baker v. Carr (1962): redistricting was deemed judiciable
Ó Textually demonstrable constitutional commitment of the issue to a coordinate political department, such as
Ï Foreign Affairs and war making power
Ï Amendments to the constitution
Ï The guaranty clause
Ï Impeachment
– Nixon v. United States (1993) there would be an erosion of power if the Supreme Court had the power to review impeachment proceedings
Ó Political gerrymandering
v  Powell v. McCormack (1969) the case was justiciable because it required “no more than an interpretation of the Constitution” and therefore did not pit the branches against each other
v  Bush v. Gore (2000) was there a textual commitment to a co-equal branch?
Ó Moore thinks the case was nonjusticiable
ü  Advisory Opinions
v  Requirement of ‘cases & controversies’
v  Some states allow it, but the federal court refuses to offer opinions on the legality of executive or legislative action that do not involve an actual case or controversy
ü  Standing (a real interest at stake in resolving the case)
v  Constitutional requirements
Ó 1. Injury-in-fact: particular and concrete, distinct and palpable, actual and imminent
Ï Lujan v. Defenders of Wildlife (1992) the injury is not actual or imminent
Ï Massachusetts v. Environmental Protection Agency (2007) demonstrates the line-drawing problem in standing analysis
Ó 2. Causation: May not be established through conjecture, but must be premised on specific and plausible allegations of fact establishing a tangible causal link between Πs injury and Δs conduct
Ó 3. Redressability: must be ‘likely’ that the injury will be redressed by a favorable decision
v  Prudential considerations
Ó 1. No third party standing: Π must assert his own legal right and interest
Ï Unless
Ï There are substantial obstacles that prevent the absent third party from doing s

in restraint of trade or commerce among the several states’
ü  Direct v. Indirect Test even though not interstate, does it directly affect?
v  United States v. E.C. Knight Co. (1895) Sugar Trust Case
Ó Could the Sherman Antitrust Act suppress a monopoly in the manufacture of a good, as well as its distribution?
Ó Manufacturing/product is not transportation and certainly not commerce
Ï Manufacturing—in this case, refining—was a local activity not subject to congressional regulation of interstate commerce
Ó Any action against manufacturing monopolies would need to be taken by individual states
ü  Substantial Economic Effect Test
v  Can control and regulate intrastate commerce if it is intimately related to its interstate counterpart
v  Shreveport Rate Case (1914) Railroad industry
Ó The federal government's power to regulate interstate commerce also allowed it to regulate purely intrastate commerce in cases where control of the former was not possible without control of the latter
ü  Stream of Commerce Test
v  Swift v. United States (1905)
Ó Commerce Clause covered meatpackers
Ó Although their activity was geographically ‘local’, they had an important effect on the ‘current of commerce’, and thus could be regulated under the Commerce Clause
Ó ‘When cattle are sent for sale from a place in one state, with the expectation that they will their transit, after purchase in another . . .’
ü  National ‘police’ regulation of moral/criminal concerns: gambling, prostitution, liquor & theft
v  Gambling: Champion v. Ames [The Lottery Case] (1903)
Ó Nuisances injurious to public health or morality
v  Hipolite Egg Co. v. United States (1911) ‘deleterious’ ingredient
v  Prostitution: Hoke v. United States (1913) upheld the Mann Act, prohibiting the transportation of women in interstate commerce for immoral purposes
ü  Hammer v. Dagenhart [Child Labor Case] (1918) overturned by Darby
v  The Keating-Owen Act of 1916 prohibited interstate commerce of any merchandise that had been made by children under the age of 14, or merchandise that had been made in factories where children between the ages of 14 and 16 worked for more than eight hours a day, worked overnight, or worked more than six days a week
v  A distinction between the manufacture of goods and the regulation of certain goods themselves ‘inherently evil’
Ó The manufacture of cotton is not inherently evil and is not in and of itself commerce
Ø  Commerce & Roosevelt
ü  Railroad Retirement Board v. Alton Railroad Co. (1935)
v  Invalidated the Railed Retirement Act (1934)
v  Though railroads are part of commerce, Congress lacks the power to establish a compulsory retirement and pension plan for all carriers subject to the Interstate Commerce Act  
ü  Schechter Poultry Corp. v. United States [Sick Chicken Case] (1935)
v  1. Improper delegation in violation of the separation of powers
Ó Congress sought to delegate to the executive the power to regulate the wages and hours of employees at a Brooklyn slaughterhouse, which sold only to local poultry retailers
v  2. Π alleged that National Industrial Recovery Act sought to regulate business which was not engaged in interstate commerce
Ó Justice Hughes used a direct/indirect effect analysis to determine that the business was not within the reach of congressional regulation