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Federal Courts
University of Iowa School of Law
Tokaji, Daniel P.

Fed Cts. Tokaji spr. 2017
Important stuff: Big questions re: role of fed cts. In democracy. Frequently-arising issues, especially public-interest and other impact litigation. Current majority on court is for: deference to exec and legislative branches (as opposed to assertiveness), statist v centralist federalism, passivist enforcement of federal rights v activist. Always remember: (1) fed cts are cts of limited jurisdiction, (2) states have courts of general jurisdiction, which can hear all matters except those on which fed law confers exclusive jur, (3) state court decisions are generally reviewable only by SCOTUS, not other federal courts (habeas is exception), (4) primary cases over which fed SMJ lies: diversity (§ 1332) and federal question (§ 1331), (5) const. generally regulates state action, not private conduct.
Boumediene v. Bush (2008, p. 998) re: enemy combatants at Gitmo. Note Rasul (2004), aliens at Gitmo can pursue habeas relief – Habeas in Rasul under § 2241(a) (AEDPA). After Rasul, they brought in DTA, which said no habeas and set up CSRT’s with limited review in DC Cir. Hamdan (2006) said DTA doesn’t apply retroactively. MCA (2006) explicitly applied retroactively (i.e. to pending cases), said CSRT was exclusive way to seek relief for all Gitmo cases. Now, Suspension Clause does not define habeas (who gets it, what procedural rights). 3 big points in Kennedy majority – (1) MCA applies to pending cases, including petitioners, (2) Suspension Clause applies even though US technically doesn’t exercise sovereignty over Gitmo, (3) CSRT process is not adequate substitute for habeas. As to (2), we do control Gitmo effectively and totally, so habeas rights extend (control is distinct from sovereignty). So we deal with the Eisentrager factors for the Suspension Clause: (1) citizenship and status of detainees and process for deciding that, (2) nature of sites where apprehension/detention took place, (3) practical obstacles in resolving entitlement to writ. Eisentrager said that US control over Germany was neither absolute nor indefinite, but different here – and no real practical concerns here, it’s closer, can do these things easier, so (2) and (3) are different from Eisentrager (some from (1) too, German nationals) – Scalia dissent says unprecedented, big stakes, some people released here have committed other crimes, no const. right to habeas b/c they are aliens abroad. Also highlights deference to military (almost like Chevron), have given them rights, there is danger here, judiciary should not inject itself where other 2 branches have made this conclusion – and Eisentrager controls here. Kennedy emphasizes ultimate control, Scalia says limited role based on const. and statute. It’s about power – who gets to decide?
So Marbury v. Madison – court was quite weak, midnight judges, yeah. Does Marbury have right to commission? Yes Is mandamus appropriate remedy? Yes. Does court have jur? Yes, per § 13 of Jud. Act., but Const. says no, only appellate jurisdiction. General principles of Marbury – (1) establishes fed ct authority to review actions of exec branch (2) establishes category of non-reviewable political q’s, (3) establishes proposition that Art. III puts limits on fed ct jur, (4) establishes power of fed cts to declare fed statutes unconst, (5) establishes fed cts as (authoritative) interpreters of fed const. Note that per Art. III, lower courts not req’d, could just have state courts and SCOTUS (think Canada). So, standing reqs in Art. III – must allege personal injury fairly traceable to D’s allegedly unlawful conduct and likely to be redressed by requested relief. 3 reqs: (1) injury in fact (current or imminent), (2) causation, (3) redressability. So, Clapper (handout). FISA court to oversee surveillance, basically secret by design. Majority says no case or controversy. Harms: (1) may be subject to surveillance, and (2) changes to activities. Majority says speculative whether gov’t will target P’s communications, whether court will order it, and whether it will succeed in tapping P’s calls. And disruption of P’s activities not enough unless future injury they purportedly fear is certainly impending.
Note that federal courts are less accountable, helps uniform federal law, expertise in interpreting federal law. Marbury: judicial power to say what the law is when there’s a case. Boumediene: aliens detained at location under US control have right to habeas. Clapper: possible targets of surveillance can’t sue unless injury certainly impending, some qualification of Marbury idea, sets bar somewhat higher. General req’s of Art. III standing (Allen, p. 256): P must allege personal injury fairly traceable and likely to be redressed. 3 req’s (Lujan, p. 281) (1) injury in fact (has or will imminently suffer injury), (2) causation (fairly traceable), (3) redressability. Clapper: can authorize targeting, majority says this is all speculative (both being surveilled and change of behavior) – what more could P’s have been able to show, who does have standing? What isn’t this possibility enough? Majority says too many possible cracks in line of causation, too attenuated. p. 1148-50 (in case itself) show gaps, and disruption of P’s activities not enough unless future injury is certainly impending (could say that changes in behavior are what any reasonable lawyer would do) – maybe ISP has standing, and if people get charged – Breyer, “very high likelihood” that gov’t will intercept some of P’s communications, O’s burden is to show a realistic threat, not absolute certainty (FN5, says sometimes “substantial risk”) – issue in Clapper is partly injury in fact, partly causation. Now, Allen – P’s parents of black kids, complaining about tax-exemption for the academies. Causal chain: D (IRS) -$->private schools->minorities denied admission. 2 injuries: (1) P’s are minorities in segregated public schools (intrinsic stigmatic injuries), (2) segregative injury (public schools getting more segregated) – held not injury. Stigmatic injury not sufficiently concrete (basically public grievance), gotta be non-abstract, stigmatic injury too amorphous, generalized/ideological grievance – and segregative injury is real injury, but not causation here (too attenuated from IRS action, and redressability would be an issue (what accomplished?) – this case decided on § 12(b)(6) motion (probably more appropriate for § 12(b)(1) motion) at pleading state for motion to dismiss – they say not plausible that injury is resulting from IRS’s conduct (maybe better to let them try and get to Sj rather than dismissal at pleading stage) – some points here: (1) Art. III limited to cases or controversies, ensures separation of powers, (2) injury must concrete, not abstract – actual or imminent, not hypothetical, and stigmatic injury isn’t (3) injury must be fairly traceable to challenged conduct and connection between IRS action and segregation is too attenuated. Brennan dis worries about strength of P’s injury, has nothing to do with separation of powers concerns. Note Duke Power (p. 278), P-A Act limited liability for companies to help build power plants. P’s here are not potential victims of accident, they are alleging injuries now b/c of thermal pollution and low-level radiation – say here there is causation/redressability b/c plants wouldn’t have been built w/o this protection, apparently not too attenuated for majority – here courts wanted to reach merits.
Standing is a bit of an issue now b/c to vindicate rights, like semi-class actions. So courts can defer to Congress (Lujan, Mass. v. EPA (p. 296), Spokeo (handout)) or injunct (Lyons, handout). Lujan notes (p. 282) irreconcilable const. minimum – (1) injury in fact (invasion of interest that is (a) concrete and particularized, (b) actual or imminent, (2) causational (injury must be fairly traceable to challenged act of D, not individual act of 3P, (3) redressability (must be likely as opposed to merely speculative that injury will be redressed by a favorable decision). In Allen, causation too attenuated, but in Duke Power, it isn’t b/c wouldn’t have been built w/o Act. In Clapper, injury wasn’t certainly impending, and re: behavior, causal chain too attenuated. Lujan: P challenging endangered species rules. P’s injuries (note org can generally sue if 1 or more members would have standing) – they have been to places to see habitat, have no definite plans to go back, and also claim procedural injury (i.e. admin law-type injury) – neither is enough to give them standing. One past visit does not give rise to imminent injury, and vague intent to go back w/o P giving evidence of plans isn’t enough – and procedural injury, even where Congress allows them to sue, must still go through standing inquiry and here it’s too generalized (must be “particularized”) – note Congress said could sue, Kennedy conc says that Congress can define injury and causal chain where none existed before – Blackmun dis says that testimony of plan to return is enough and Congress not trying to aggrandize own power but to maximize executive discretion w/in defined procedural constraints (here, Court is deferential to executive, assertive re: Congress).
So, do they defer to Congress on Art. III standing? For yes, see Mass v. EPA, statute authorized private suits to review agency action on emissions, state ownership of potentially affected coastal land was sufficient injury under Art. III – Congress has power to define injuries and articulate chains of causation that will give rise to c/a where none had existed before (Kennedy

tholder to assert rights.  Now, generally, when may 3P rights be asserted? (1) obstacles & special relationship where interests not in conflict, (2) in Am. I cases, where party whose conduct is not protected brings facial challenge to substantially overbroad law (i.e. ridiculously obscene person could challenge overbroad obscenity law), (3) where ass’n seeks to assert members’ own interest (NAACP v. Al.). In Singleton, they’re working on (1). Maj here says there are obstacles and special relationship (and mootness – but, BS!) What is advantage of waiting, as Powell advocates? Less doubt about politics of decision (really controversial issue, shouldn’t be in hurry to reach merits of this stuff). Arguments for doctors can be trusted to assert 3P rights, not fake lawsuit, urgency here, maybe these P’s aren’t sophisticated, etc. Now, note Craig v. Boren, sex gets intermediate scrutiny, case of under-21 was moot by time it got to SCOTUS, only proprietor left; said proprietor had standing (obstacle, not huge stretch; capable of repetition but evading review, I guess – special relationship, LOL, real stretch). Now, Elk Grove v. Newdow (handout): said no standing, even though close relationship. Child is rightful P here (her Am. I rights are at issue here), trouble w/ next friend idea is that under Cal. law, wife has sole legal custody so dad can’t sue as next friend. Claims, otherwise, derivative injury interest in inculcating daughter in religious belief. So, what’s the problem here? There is special relationship and obstacles (daughter is a minor), but potential conflict of interest in his interests (inculcating daughter) and hers (she is Christian, says mom). Maj thinks that when hard questions of domestic relations are going to affect outcome it’s prudent to keep out, and conflict of interest is exception to 3P standing doctrine. Rehnquist says domestic relations is not obstacle and relationship is cause of conflict, etc. Now, Newdow had injury, but right violated was not his right. So trouble with 3P standing. Now, CREW lawsuit, suing to assert its own rights, claims depletion of resources, etc. (tough for damages, qualified immunity b/c law not clearly established), informational (eh – we know everything for this purpose, at least all we need, and discovery would not be relief) – and causation (how is Trump forcing diversion of their resources>) – and generalized grievance? (Art. III and prudential issue – argument that not concrete or (better) particularized=>no injury in fact) (and generalized grievance, so even if injury in fact, generalized grievance and better addressed by political branches). So, general takeaways from prudential standing: (1) general prohibition on 3P standing, (2) generalized grievances, (3) zone of interests – 3P rights may generally be asserted when there are (1) obstacles and special relationship unless P and 3P have different interests, (2) Am. I cases (see above), (3) ass’n.
Standing (who can sue), ripeness and mootness (when): I have no immediate plans to put up sign but (1) my neighbor does and I want to sue on his behalf (standing problem), (2) I may want to put one up next year (ripeness, certainly, and maybe standing because not sufficiently immediate injury), (3) I would’ve put one up last year but for ordinance (mootness problem, and standing b/c no present or imminent injury) – standing and mootness are plastic and redundant (note: if you’ve done it enough, may give imminence – Davis v. FEC). So what do ripeness and mootness add to standing? Ripeness: is pre-enforcement review appropriate? Mootness: does controversy still exist at time of adjudication? – Ripeness factors: (1) will there be hardship if review is denied? (2) are facts adequately developed to allow focused review? (These are factors, not criteria – like sliding scale).