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Constitutional Law I
University of Kentucky School of Law
Huberfeld, Nicole

Constitution in General – Scope and Purposes

Purposes of the Constitution: a system that has been codified that creates principles on which US is governed

We want to create processes of government that do not collapse in times of crisis
We want a document/government that will resist the pressures of tyranny
Certain rights should be immune from the “winds of majority rule”

What the Constitution does:

Creates the Federal government and its branches [separation of powers] Establishes the relationship between the federal government and the States [Federalism] Delineates some powers to the states
Occasionally protects the people
Creates a republican form of government [representatives of the people; whereas democracy is direct action by people]

Judicial Review

Definition: power of the courts to determine the constitutionality, and thus the validity of laws enacted by the legislative branch and enforced by the executive as well as state laws
Marbury v. Madison

Seeking a writ of mandamus [compelling a government officer to perform a duty that entails no discretion]

i. Marshall declares that court cannot deliver appointment, but can examine other 2 branches
ii. Held the Judicial Act of 1789 unconstitutional because it tried to expand original jurisdiction
1. Congress cannot add to original jurisdiction because it’s constitutional

When can SCOTUS review executive conduct?

i. When the act is non-ministerial [non-discretionary], the Supreme Court cannot review it
ii. When the act is ministerial [discretionary] SCOTUS can review it

Can an act, repugnant to the Constitution, be the law of the land? [judicial review over legislative branch]

i. Constitution has regulatory authority [unlike Magna Carta, Declaration of Independence] ii. Also, “it is emphatically the province and duty of the judicial department to say what the law is”

Judicial Review over State Law:

Martin v. Hunter’s Lessee: Supreme Court has appellate jurisdiction over state courts

i. SCOUTS would never hear any cases if they couldn’t review state court decisions

Cohens v. Virginia: upholds the right of SCOTUS to exercise appellate jurisdiction in criminal actions

Limits of the Power of Judicial Review

Interpretive Limits

Tools of Interpretation:

i. Text and Structure of the Constitution, Intent of Framers, previous interpretation [precedent] ii. Justice’s Jurisprudential View
1. Originalist: court should protect rights under the Constitution only if specifically in text or intended by Framers
2. Textualist:
3. Non-originalist: Constitution must evolve by interpretation not just by amendment. Otherwise a static document lacking pertinence to the times as they evolve

Justiciability Limits

Theory behind justiciability doctrines:

i. Separation of powers: limits matter the court will consider [limits judicial review] ii. Conservation of judicial resources: prevents suits with no stake in the outcome
iii. Improvement of judicial decision making: actual and concrete controversies better suited for judicial resolution because adversaries have incentive to present all facts and argue each side
iv. Promotion of fairness: prevent litigating rights of those not before the court
v. **** All Plaintiffs must meet these threshold determinations
1. Almost procedural in nature

Advisory Opinions

i. Examples:
1. Asking SCOTUS’s opinion on a bill making its way through Congress
2. General question referred by either of the other branches
ii. 2 Criteria NOT to be advisory
1. Must be an actual dispute between adverse litigants
a. Article III: judicial power extends to all “Cases and Controversies”
2. Substantial likelihood that a federal court decision in favor of P will bring about some change
a. Hayburn’s Case: Court says it will not decide a case because it would not be a final consideration because the Secretary of War still had to sign off on it
3. Plaut v. Spendthrift Farms:
a. Congress cannot displace the judgment of an Article III court with a statute on the same subject that changes the rights of the parties to the litigation
i. Judicial decision is the final word on that particular controversy

Standing: WHO?

i. Definition: determination of whether a particular party is the proper one to present a particular issue to the Court for determination
ii. 3 Constitutional Limits [limits that exist because of the language of Article III]; examined in order
1. Injury: [standing always flows from how the court describes the injury] a. Requirements: must be imminent and personal
i. Injury suffered by P must be individualized, particularized, concrete
ii. Cannot be conjectural, hypothetical, or speculative
b. Allen v. Wright: tax exemption by IRS to private schools maintains segregation
i. A plaintiff must allege personal injury fairly traceable to the D’s allegedly unlawful conduct and likely to be redressed by the requested relief
ii. Injury #1: direct harm by Govt. financial aid to discriminatory school
1. Not a judicially cognizable injury: stigmatic injury
iii. Injury #2: tax exemptions impair ability to have desegregated school
1. Court says cognizable injury: but looks like causation
iv. Causation: Can’t show IRS is causing segregation
v. Redressability: even if IRS exemption is changed, no change in segregation policy is assured
vi. Takeaway: stigmatization of govt. policy normally not accepted injury
c. Massachusetts v. EPA: Clean Air Act causing damage
i. Incremental injury is sufficient for standing
ii. When a state is suing, automatic standing via special solicitude
d. City of Los Angeles v. Lyons: elimination of chokehold by LAPD
i. Lyons has no standing because no proof he will ever be choked out again
1. Must allege a substantial likelihood that he will be subjected to this activity in the future (must be personal injury)
e. Lujan v. Defenders of Wildlife: Endangered Species Act
i. Court finds there is a cognizable injury [environmental harm] but it was not imminent
ii. Congress tried to designate the injury via statute: court says not enough for standing because there was redressability concerns [Congress can’t determine standing] iii. When filing a federal court complaint you must show how client has suffered an injury because of D’s acti

v. Gardner: Federal Food, Drug, and Cosmetic Act
1. Pharmaceutical companies stand to lose a lot of money by complying to a new regulation for labeling and have not yet complied] a. Is this case ripe? – yes – 2 PART TEST FOR RIPENESS
i. Fitness of the issues to decide
ii. Hardship of the parties of withholding court consideration
b. Impact of regulations upon petitioners is sufficiently direct and immediate as to render issue appropriate for judicial review

Mootness: Is it too late?

i. When a live controversy does not exist, even though an actual controversy at one time exists
ii. General Rule [from Article III]: must be an injury at all stages of litigation
1. Examples: death, change in law, change in circumstances
iii. Exceptions to mootness [when circumstances change but reasons for case to continue] 1. Wrongs capable of repetition but evading review – 2 PART TEST
a. Part 1: Must have a reasonable expectation that the complaining party would be subjected to the same action again; AND
b. Part 2: injury of the type inherently limited in duration such that it will always become moot before the litigation can be completed
c. Roe v. Wade: applies this 2 part test
i. Roe is a female so she could be subjected to same action again because she could get pregnant again
ii. Limited in duration [10 months of pregnancy] 2. Voluntary cessation of the activity of the D
a. D agrees to stop activity but is completely free to return to it
b. Friends of the Earth v. Laidlaw: D ceases pursuant to Clean Water Act
i. D has to prove that there is no reasonable chance that they could resume behavior
ii. Difference between standing and mootness: mootness more flexible because less likely to get kicked out of court so late in the game
3. Class Actions
a. Rule: properly certified class action can continue even if the named P’s claims are moot

Political Question

i. Just because something sounds like a political issue, does not mean it is a political question
1. Subject matter should be left to another branch [inappropriate for judicial review] ii. Baker v. Carr: Malapportionment challenged under Equal Protection Clause [not Guaranty Clause] 1. 6 Part Disjunctive Test: [“or” means any 1 can be sufficient to determine it IS a political question] a. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; OR
i. Ie. – Does Constitution delegate to another branch?
b. Lack of judicially discoverable and manageable standards for resolving it; OR