Constitutional Law I Outline
Professor Nicole Huberfeld
Spring 2012
Exam Tips
· Doctrine of Constitutional Avoidance – If the court does not have to interpret the Constitution it will not
o Example in the pledge of allegiance case in justiciability section
· Legislation is enacted, Regulations are adopted
· Proper capitalization is required (State v. state)
· Rational Basis Review – A standard of review that asks whether Congress could have had a reasonable basis for reaching the conclusions necessary for its legislation to be constitutional
I. The Federal Judicial Power
à Separation of Powers and Federalism
1. Separation of Powers: the deliberate division of power among the federal government.
◦ The Founding Fathers established a separation of powers because they were afraid of tyranny.
§ Horizontal relationship
2. Federalism: relationship between the federal government and the states.
§ Vertical relationship
à Important Constitutional Provisions
· Article I, Section 8, Clause 9: Congress has the power to create lower federal courts (below the Supreme Court).
· Article III of the Constitution:
o Section 1: The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…
o Section 2, Clause 1: The Judicial Power shall extend to all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; –to all Cases affecting Ambassadors or other public Ministers and Consuls; –to all Cases of admiralty and maritime Jurisdiction; –to Controversies to which the United States shall be a Party; –to Controversies between two or more States; between a State and Citizens of another State; –between Citizens of different states; –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.
o Section 2, Clause 2: In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned [in Clause 1], the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
A. The Authority for Judicial Review
1. Power of Judicial Review: the power of courts to determine the constitutionality and thus the validity of laws enacted by the legislative branch and enforced by the executive branch, as well as state laws.
2. Marbury v. Madison:
o The Constitution is a foundational document that is regulatory in nature.
o The Supreme Court may review the constitutionality of the actions of the executive branch and actions of the legislative branch.
o “The Government of the United States has been termed a Government of laws, not of men” (No one is above the law).
o Discretionary Acts (political in nature) ARE NOT subject to judicial review.
o Ministerial Acts (specific duty assigned by law) ARE subject to judicial review.
o “It is emphatically the province and duty of the judicial department to say what the law is” (cited numerous times).
o Marbury in one sentence – “you have the right and we would love to help you, but we cant because we do not have the jurisdiction to do so.”
o Congress cannot change/expand the original jurisdiction of the Supreme Court because the original jurisdiction of the Supreme Court is set forth in Article III, Section 2, Clause 2. (“to say the one is to exclude the other”).
§ Facts of Marbury v. Madison: Congress created power for the Court to hear original petitions for writs of mandamus. Chief Justice Marshall struck that Act down as unconstitutional—Congress cannot expand the Court’s original jurisdiction beyond that explicitly given in Article III.
§ However, Congress has the power under Article III § 1, Article III § 2 cl. 2, and Article I, § 8, cl. 9, to create and control the jurisdiction of the lower federal courts.
· Note: while Congress can seemingly deny jurisdiction to all lower federal courts (courts created by Congress under Article III), this is complicated because it would essentially create original jurisdiction for the Supreme Court (indirectly expanding the Supreme Court’s original jurisdiction).
B. The Authority for Judicial Review of State Judgments
1. Martin v. Hunter’s Lessee: Supreme Court has the power to review state court decisions regarding civil actions.
◦ Justice Story’s Argument: the Constitution does not require Congress to establish federal courts. However, if the
Congress does not establish federal courts, the Supreme Court would be powerless to hear any cases, except for
those fitting within its original jurisdiction under Article III… unless it could review state court rulings.
2. Cohens v. Virginia: Supreme Court has the power to review state court decisions regarding criminal cases.
◦ “States are not co-equal sovereigns with the United States.”
◦ The Supremacy Clause: if there is an element of the state constitution that conflicts with the United States
Constitution, that element of the state constitution is unconstitutional. States must give way to US Constitution.
C. Limits on the Federal Judicial Power
1. Interpretive Limits
a. Text and Structure of the Constitution (Separation of powers and federalism)
b. Intent of the Framers.
c. Justice’s Jurisprudential Viewpoint (Originalist vs. Non-Originalist)
i. Originalist – only evolve by amendment, focus on the intent of the framers and the text.
· Roberts
· Scalia
· Kennedy (swing vote)
· Thomas
· Elito
ii. Non-Originalist – may evolve by interpretation and amendment. “Living, breathing document.”
· Sotomayor
· Kegan
· Breyer
· Ginsberg
d. Power of Precedent (Stare Decisis) (Supreme Court is not inherently bound by its own decisions)
e. To Some Extent, Natural Law (Court must enforce certain rights whether or not stated in the Constitution (civil liberties)).
i. Will not discuss much
2. Congressional Limits (HAVE NOT DISCUSSED YET)
a. The Exceptions and Regulations Clause (Article III, Section 2, Clause 2).
• Ex Parte McCardle: Congress has power under the Exceptions and Regulations Clause to remove the
Supreme Court’s appellate jurisdiction (here, regarding habeas corpus appeals conferred by the
Judiciary Act of 1867). However, jurisdiction must lie somewhere in the federal courts. Congress cannot
remove jurisdiction from all federal courts.
b. Separation of Powers as a Limit on Congress’s Authority
• U.S. v. Klein: Exceptions Clause is not plenary and Congress cannot gut the core of judicial function
· Specifically, the Supreme Court in U.S. v. Klein recognized some limits on Congress’ power to restrict the appellate jurisdiction of the Court.
· However, the Court focused more on separation of powers as a limit on Congress’s authority than the Exception and Regulations Clause.
· In the statute at issue, Congress was redefining the president’s pardon power and said federal court jurisdiction would terminate upon proof of such a pardon. Separation of powers appeared violated.
o The statute encroached on the Court’s ability to evaluate evidence and apply the law—Congress cannot tell judges how to apply the law (they can only change the law).
o The statute also encroached on the President’s power to grant full pardons. This is a constitutionally given and specifically worded power which Congress cannot interfere with.
3. Justiciability Doctrines as a Limit
a. Justiciability Doctrines: determine which matters federal courts can hear/decide and which must be dismissed.
b. Constitutional vs. Prudential Doctrines: all of the justiciability doctrines have been created by the Supreme Court but some are constitutional in nature (attributable to Article III, Section 2, Clause 1 on “Cases and Controversies”) and some are prudential in nature (the court is saying it would not be prudent to hear the case).
Constitutional doctrines cannot be overridden by a Congressional act.
Prudential doctrines can be overridden by a Congressional act.
c. Underlying Policies of the Justiciability Doctrines
1. Separation of Powers
· Doctrine of Constitutional Restraint/Avoidance: if the court can decide a case based on what is before it and not what is in the Constitution, it will do so.
2. Conservation of Judicial Resources
· If a party does not have a good reason to pursue the litigation or is not the best party to bring the case, that party is wasting judicial resources.
3. Improvement of Judicial Decision-Making
· If these parties are the best to bring the case, they will improve the courts ability to make a final decision (they will bring all aspects of fact and law that are pertinent to the case).
4. Promotion of Fairness
· Prevent parties from litigating the rights of those who are not before the court.
The Five Justiciability Doctrines
1. Prohibition on Advisory Opinions
All the justiciability doctrines ensure what a plaintiff is presenting to the court is not an advisory opinion.
1. There must be an actual dispute between adverse litigants.
· Opinion of the Justices Case: President George Washington’s Secretary of State Thomas Jefferson asked the Supreme Court for its answers to a list of questions concerning America’s status as neutral. There is no litigation at all—just a letter for an opinion. If all the Supreme Court is providing is advice and the president does not follow this, the court loses respect.
2. There must be a substantial likelihood that a federal court decision in favor of a claimant
will bring about some change or have some effect.
· Hayburn’s Case: The Supreme Court declared a Congressional law having judges make recommendations regarding pensions to the Secretary of War unconstitutional. The court said such recommendations were “not of a judicial nature,” as the nature of a judicial decision
while Congress can create statutory standing, Congress cannot create authorizations of standing that are too broad, such as “any person may commence a civil suit.”
While standing is concerned with who is a proper party to litigate a particular matter, ripeness and mootness determine when that litigation may occur.
3. Ripeness: seeks to separate matters that are premature for review because the injury is speculative and may never occur, from those cases that are appropriate for federal court action.
Ripeness generally applies when a plaintiff is seeking a pre-enforcement review of legislation.
There is legislation that the plaintiff thinks is unconstitutional but the plaintiff does not want
to violate the law in order to find out that the legislation is unconstitutional.
Poe v. Ullman (Difficult Standard to Meet): Married women for whom pregnancy was medically
unadvisable and their doctors filed a lawsuit challenging a Connecticut law preventing doctors from
providing information about contraceptives and preventing the distribution, sale, or use of contraceptives.
· The Supreme Court said this case was not ripe (it was premature for review) because there had been only one prosecution under the law in more than 80 years.
Abbott Labs (Easier Standard to Meet):
· Two Part Test for Determining Ripeness:
o 1. Fitness of the issues for judicial decision: is this case fit for a final decision?
· Is a final decision appropriate here?
o 2. Hardship to the parties of withholding court consideration: the more a plaintiff
can demonstrate substantial hardship to a denial of pre-enforcement review, the
more likely a federal court is to find ripeness.
· In Abbott Labs, the choice was to comply with FDA regulation and spend a ton of money relabeling drugs or not comply and commit a crime. There is a hardship here: spend millions of dollars or commit a crime (The Supreme Court found this case ripe for judicial review).
4. Mootness: an actual controversy must exist at all stages of federal court proceedings. A case is moot if the case involved a controversy but circumstances have changed so the controversy no longer exists.
Examples: Parties settle a lawsuit, a party drops its case, the parties settle the case, defendant dies, change of law, etc.
ii. Mootness is much more flexible than ripeness and standing because all judicial resources have been used when mootness issues occur.
Exceptions to Mootness
· 1. Wrongs capable of repetition yet evading review: some injuries occur and are
over so quickly that they always will be moot before the federal court litigation
process is completed. When such injuries are likely to recur, the federal court
may continue to exercise jurisdiction over the plaintiff’s claim notwithstanding
the fact that it has become moot.
o Roe v. Wade: pregnancy is a classic example. The plaintiff was pregnant when she filed her complaint challenging the constitutionality of a state law banning abortion. However, obviously, by the time the case reached the Supreme Court her pregnancy was completed and she no longer sought an abortion.
· Two part test of first exception:
o Reasonable expectation that the complaining party would be subjected to same action again.
o Injury is of a type inherently limited in duration.
· 2. Voluntary Cessation of the Activity by the Defendant: if the defendant
voluntarily ceases the allegedly improper behavior but is free to return to it at
any time, the case will not be dismissed as moot.
o Friends of the Earth v. Laidlaw: the Supreme Court said only if there is no reasonable chance that the defendant could resume the offending behavior should a cased be deemed moot on the basis of voluntary cessation.
· Moreover, the burden is on the defendant to prove that there is no reasonable chance of resuming the behavior.
· Here, the defendant retained the pollutant discharge permit and it was clear that he could easily reopen the plant and continue the act in question (excessive mercury discharge).
