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Constitutional Law I
University of Kansas School of Law
McAllister, Stephen R.

FALL 2012
Original Jurisdiction
–          Congress has passed legislation implementing the grant in Art. III to the Supreme Court of original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.
–          Congress cannot grant original jurisdiction to the Court beyond those cases specified in Art. III.
Appellate Jurisdiction
–          Art. III, § 2, provides that in all other cases to which the federal judicial power extends, the Supreme Court shall have appellate jurisdiction.
–          But this power is given “with such Exceptions, and under such Regulations as the Congress shall make.”
–          Congress must authorize the Court’s appellate jurisdiction, and Congress may withdraw subjects from the Court’s appellate jurisdiction.
–          Congressional failure to authorize jurisdiction is considered an implied exception.
–          How extensive such withdrawal can be is a matter of dispute.
Invalidation of State Laws:
·         Martin v. Hunter’s Lesee:
o   Facts:
§  There was a treaty, which was federal law, stating that the US sill respect the land passed down from the King of England.
·         The state of VA says, screw this, we are not going to follow that federal law, we are going to apply our own state law and we think the land belongs to someone else.
o   States have to follow federal laws (assuming a federal law has already been established)
§  Therefore, the Court can use its appellate jx. to be the final voice on ANY case brought in a state court dealing with a FEDERAL ISSUE.
·         However, they may not review decisions of state courts that merely adjudicate questions of state law. 
o   Rationale:
§  Federal uniformity is important!  If state court judges were allowed to come to constitutional decisions on their own merit, there would be discrepancy in what the Constitution demands as binding.
§  The Supremacy Clause in Art. VI, cl. 2 states that Federal law shall be the supreme law of the land…
Limits to Congressional Exceptions to Judicial Review
1.       Essential Functions:  Internal Restraints
2.       Rights and Liberties:  External Restraints
–          Congressional statutes withdrawing Supreme Court review might also invade rights and liberties guaranteed in the Constitution, e.g., Fifth Amendment due process.
–          Ex Parte McCardell:
o   A congressional statute withdrawing Supreme Court appellate jurisdiction to issue writs of habeas corpus was held constitutional, even though the case was already pending.
o   But not that other methods for Supreme Court review were still available.
o   The congressional statute did not foreclose all Supreme Court review of the constitutional issue by only precluded one particular remedy.
o   Nevertheless, the Court did use sweeping language in describing congressional power over Art. III appellate jurisdiction.
Boumediene v. Bush – US federal courts have jurisdiction over Guantanamo Bay prisoner’s writ of habeus corpus because we essentially have a never-ending lease over that territory.  Habeus statutes gives the right to file anywhere within US jurisdiction.  Prisoners have a constitutional right to Habeus Corpus.  The Suspension Clause (Art. I, §9, cl. 2) is NOT suspended at GB.
·         Court looks at 3 factors in determining the reach of the Suspension Clause:
o   1. The citizenship and status of the detainee and the adequacy of the process through which that status determination was made
o   2. The nature of the sites where apprehension and then detention took place AND
o   3. The practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
Miller v. French – Congress may change the underlying law of an injunction and therefore change/remove the injunction.  But Congress cannot review/change a judgment awarding damages.
–          Plaut – Congress has no authority to reopen cases that have been final (Article III court judgments)
–          Hayburn – Congress cannot vest the review power of Article III urts in the executive branch.
“Case or Controversy” Requirement
–          The federal judicial power granted in Art. III is limited to certain defined “cases and controversies.”
–          This requires that a case be in an adversary form and context that is capable of judicial resolution and that its resolution would not violate separation of powers principles.
–          If this requirement is not met, the federal courts lack jurisdiction and, therefore, power to act.
General Standards
–          Art. III case and controversy requires that the party seeking to litigate a constitutional question demonstrate “such a personal stake in the outcome of a controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions.”  (Baker v. Carr)
–          A litigant has such a “personal stake” if he alleges: Test
o   (1) an “injury in fact”
o   (2) “fairly retraceable” to the defendant’s action being challenged; and
o   (3) “redressable” by the judicial relief requested.
–          The injury must be caused by the defendant’s wrong.
–          See McCalister supplement pg. 136 for stuff on third party standing.
o   Generally, with 3rd party standing, states cannot assert standing on behalf of citizens.
–          The Court has stated that injury in fact requires “an invasion of a legally-protected interest which is
o   (a) concrete and particularized, and
o   (b) actual or imminent, not conjectural or hypothetical.” 
–          Lujan v. Defenders of Wildlife (1992)
o   Environmental groups lack standing to challenge a regulation by the Department of the Interior requiring agencies providing funds to projects affecting endangered species to consult with the Department only if the projects are domestic or on the high seas.
o   Although a desire to use or observe an animal species is a judicially cognizable injury in fact, the groups failed to show that one or

s rather than cases involving state power but it has been suggested as applicable to constitutional cases generally.
–          Why do we have the non-justiciable doctrine?
o   The Court doesn’t want to intrude on either of the other branches for things they should deal with; aka, separation of powers issues.
–          What are the 6 factors the Court looks at to see if something is a political question or not? (numbers 1 and 2 are the most important factors)
o   1. Textually demonstrable constitutional commitment of issue to a coordinate political department.
§  Aka, the Constitution says this is an issue for Congress or the President.  Thus they think there is a separation of powers issue.
o   2.  Lack of judicially discoverable and manageable standards for resolving the issue at hand.
§  Luther case, cited within Baker is a good example of this factor.
§  Also, Veith v. Jubelirer is a good one as well.  Scalia and the rest of the majority found this was a non-justiciable question bc there was way to create a legitimate test to stop the political gerrymandering going on by reworking the political districts based on party preference.
o   3.  Impossibility of deciding issue w/o an initial policy determination of a kind clearly for nonjudicial discretion.
o   4.  Impossibility of a court’s undertaking independent resolution w/o expressing lack of respect due other branches of gment.
o   5.  Unusual need for unquestioning adherence to a political decision already made
o   6.  Potentiality for embarrassment from multifarious pronouncements by various departments on one question.
2 Main Categories of Non-Justiciability:
(1)  Separation of Powers – Textually demonstrable constitutional commitment of issue to a coordinate political department.
(2)  Functional – Lack of judicially discoverable and manageable standards.
–          Where a decision of a state court includes a “plain statement” – “clearly and expressly” – that it rests on adequate and independent state grounds, the Supreme Court will not take jurisdiction even though the state court may have also erroneously decided a federal constitutional question.
–          But federal jurisdiction over state court decisions exists when the state’s “decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state ground is not clear from the face of the opinion.”  (Michigan v. Long 1983)