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Constitutional Law I
University of Kansas School of Law
Levy, Richard E.

I. JUDICIAL POWER TO ENFORCE THE CONSTITUTION
CONSTITUTIONAL BASES
Article III.
                                                               i.      § 1. Establishes the Supreme Court but provides no specifics. Provides for lower courts established by Congress.
                                                              ii.      § 2. Jurisdiction extends to all cases arising under the Constitution.
1.        cl. 2. Original jurisdiction (state vs. state), appellate jurisdiction.
Article VI.
                                                               i.      Supremacy Clause. Constitution and federal law are supreme. cl. 2
                                                              ii.      Oath Requirement. Judicial officers bound by oath to support Constitution. cl. 3
JUDICIAL REVIEW OF FEDERAL ACTIONS
The Supreme Ct is the final authority on the constitutionality of federal action – “judicial review” of federal law. Marbury v. Madison (p. 17)
JUDICIAL REVIEW OF STATE ACTS
Federal question. The Constitution allows SC to review any case presenting a federal question (even a state case). A3 jurisdiction is based upon types of cases, not courts. Martin v. Hunter’s Lessee (p. 31)
                                                               i.      Criminal review. Extended to state criminal cases. Cohens v. Virginia
Types of review.
                                                               i.      Federal courts.
1.        Review congressional/executive act in light of federal law.
2.        Review state act in light of federal law.
                                                              ii.      State courts.
1.        Review state acts in light of federal law.
2.        Review state acts in light of state law.
SUPREME COURT JURISDICTION
Original. “In all cases affecting ambassadors . . . and those in which a state shall be a party, the SC shall have original jurisdiction.” Art. III, § 2, cl. 2
Appellate.
                                                               i.      Congress can limit (make exceptions to) but not expand (except by expanding the scope of matters regulated by federal statutes). Can apply to pending cases. Ex parte McCardle (p. 57); Exceptions Clause, Art. III, § 2.
                                                              ii.      Congress must declare limitations expressly and probably cannot eliminate appellate review entirely. McCardle (p. 57)
                                                            iii.      Habeas today. Congress must express clear intent to suspend habeas and present an alternative forum. INS v. St. Cyr (p. 59) Congress has restricted second and subsequent habeas motions; SC upheld this. Felker v. Turpin (n. 4, p. 59)
1.        Foreign soil. Detainees on U.S. military base on foreign soil retain right to habeas corpus in federal courts. (Contrast with general rule against Constitution having extraterritorial effect; Constitution has effect on U.S. military base.) Rasul v. Bush (supp. p. 1)
                                                            iv.      Alternative forums. Congressional restrictions on federal jurisdiction may not be unconstitutional so long as an alternative state forum provides access to SC review. n. 4, p. 64
                                                             v.      Power over decisions. Congress/Executive cannot have review over A3 court decisions that are final. Miller v. French (p. 64)
1.        Underlying law. Congress can modify underlying law (which could affect injunctive relief that is ongoing, as opposed to damages, which are final judgments). Miller (holding that an automatic stay did not unconstitutionally suspend/reopen a judgment of an A3 court)
INTERPRETATIONAL METHODS
Textualism. Literal textual reading. (Pro: s

ged action must be a “but for” cause of the injury (and not the result of independent acts of a third party not before the court).
                                                                                                                                    iii.      Injury likely to be redressed by court granting merits relief.
1.        Must be likely (not speculative) that the injury would be redressed by a favorable decision. Relief requested must be designed to alleviate injury from Δ’s conduct.
b.       Taxpayer standing. Generally not permitted.
                                                                                                                                       i.      Exception. Establishment Clause issues. Flast v. Cohen
1.        Logical link b/w status and act (taxing and spending powers).
2.        Nexus b/w status and asserted constitutional violation.
3.        Prudential limitations.
a.        Third party standing. Generally not permitted.
                                                                                                                                       i.      Exceptions to general rule:
1.        3rd party is unable to sue.
2.        Special relationship between third party and π. Newdow v. Elk Grove (no standing for suit by father who did not have custody; mother had special relationship with daughter)
3.        Statutory authorization for π to sue on behalf of 3rd party.
3rd party rights indirectly violated by enforcement against π (or vice versa).