Huberfield Constitutional Law Spring 2015
The United States Constitution
-Federalism:
1. States can be used to experiment as laboratories for social and economic change.
2. More responsive and democratic government (b/c states are closer to the people).
3. Lessens chance of tyranny.
· 10A: Any power that congress gets is less power for the state.
Separation of Power
1. Enhances liberty by preventing concentration of power in any single branch
2. Stability in government (deliberately hard for federal government to take action)
3. Efficiency through division of labor
Article 1: Congressional Branch
· §1 vest legislative power in both houses of Congress.
· §2 cl. 5 House of Representatives have the sole power of Impeachment.
· §3 cl. 5 VP is the tie breaker of the Senate.
· §3 cl. 6 Sole power to try all impeachments.
· §7 cl. 2 & 3 Presentment Clause (Presidential Veto)
· §8 enumerated powers granted to Congress.
o §8 cl. 1: Tax and Spending Clause
o §8 cl. 3: Commerce Clause
o §8 cl. 9: Set up lower federal courts
o §8 cl. 10-16: War Powers
o §8 cl. 18: Necessary and Proper Clause
· §9 negative powers (limits) on Congress.
o §9 cl. 2: Suspension Clause (Habeas Corpus)
· §10 limit on state power.
o §10 cl. 1: No power for States to make treaties or alliance.
o §10 cl. 3: No war powers for States.
Article 2: Executive Branch
· §1 vest President with all the power of the executive branch.
· §2 cl. 1: Grants power of Commander in Chief
· §2 cl. 2: Power to make treaties and appoint ambassadors.
· §2 cl. 2: Appointment clause.
· §3 shall receive ambassadors.
· §3 Take Care Clause.
· §4 Impeachment of President.
Article 3: Judicial Branch
· §1 establishes USSC as judicial power of US.
· §1 reiterates Congress has power to establish lower courts.
· §2 cl. 1: establish SMJ for federal courts.
· §2 cl. 1: Case and Controversy Requirement
· §2 cl. 2: USSC Original Jurisdiction and Appellate Jurisdiction (??can congress limit)
· §3 cl. 1: Treason
Article 4: States
· §1 Full Faith and Credit between states.
· §2 Privileges and Immunities Clause- “Equal Treatment”
· §3 Creation of new states.
· §4 Federal Gov’t will protect against invasion.
Article 5: Constitutional Amendments
· 2/3 of congress or states to convene conference on amendment and ¾ of states to ratify an amendment.
Article 6: Supremacy Clause
· Cl. 2: Supremacy Clause
Article 7: Ratification of the Constitution
10th Amendment: Reserve rights for the States.
11th Amendment: Suits against States do not have Federal SMJ.
13th Amendment: §1: Prohibits Slavery §2: Gives power to Congress to enforce.
15th Amendment: §1: Prohibits denial of voting based on race. §2: Gives power to Congress to enforce.
14th Amendment: §1: Equal Protection and Due Process; §5 Gives Power to Congress to enforce (Exception to 11A).
Authority for Judicial Review
-Discuss when ever determining the constitutionality of a law or executive act.
· B/c cannot determine constitutionality until the court has the power to review the law or act.
Marbury v. Madison, USSC, 1803- The case that grants courts power of judicial review of federal acts.
-Each branch of government must initially interpret the power it is given by the Constitution.
· But it is the duty of the judiciary to decide what the Constitution says (Marbury v. Madison).
– Judicial Review of a Legislative Act is ALLOWED:
-Reasoning:
· Art. III §2 cl. 1 says that it is the judiciary’s job to decide cases that arise under the constitution.
o Cases under Constitution often involve legislative act so it is necessary to review legislative acts.
· Constitution is the fundamental and paramount law of the nation.
o No law can be repugnant to the Constitution so judiciary must enforce the Constitution.
-Test for Judicial Review of an Executive act:
o Reviewable if:
1. The act is ministerial; and
o NOT Reviewable when the act is based on discretion.
§ If act is discretional then only recourse is political discord.
2. Affects an individual’s legal rights; and
3. The right is granted by a law.
-Reasoning:
· “We are a nation of laws not of men”
· Makes it so every man is subject to the law including the President.
-Marbury held that President Madison’s act of refusing to give Marbury his commission as a federal judge was reviewable. However, the court determined it lacked original jurisdiction by reviewing an Congressional Act and holding that it could not expand USSC original jurisdiction.
Hunter’s lessee & Cohens, USSC, 1816/1821- Grants the USSC power for judicial review of state acts.
-Hunter’s Lessee:
· Constitution presumes that the US Supreme Court may review state court decisions.
1. Protects against state interests and prejudices and state judges that are paid by the state.
2. Ensures uniformity of application of federal law.
3. Supremacy Clause implies that the judiciary can rein in the States if not following federal laws.
-Cohens:
· Reaffirmed Hunter’s Lessee
· Criminal Δs could seek USSC review when claiming that their conviction violated the Constitution.
Limits on Federal Judicial Power:
1. Interpretative Limits
2. Justiciability Limits
3. Congressional Limits- Congress has power to limit federal courts SMJ.
Interpretive Limits
-How should the language of the constitution of the constitution be interpreted.
1. Text and structure of Constitution
2. Previous Interpretation – stare decisis, the power of precedent
3. History of the Constitution
4. Justice’s Jurisprudential View
· Non-originalist view is necessary for modern society.
· Originalism- Belief that the constitution should be interpreted narrowly.
5. Natural Rights
Justiciability Limits (example question in slides)
-Judicially created doctrines that limit the cases that federal courts can decide.
-Applies to every case in a federal court.
-Two Types of Authority for the Justiciability Doctrines:
§ Constitutional- Constitutionally required, and cannot be overturned by Congress.
o Article III §2- Requires that there be a case or controversies for a federal court to decide a case.
o Separation of Power limits the cases in order to keep judiciary usurping other branches.
§ Prudential- Required for prudent judicial administration, capable of being overridden by Congress.
o Conservation of Judicial Resources (Properly incentivized parties)
o Improvement of Judicial Decision-making (Actual controversies focus the issue)
-5 Major Justiciability Doctrines:.
1. Prohibition of Advisory Opinions
2. *Standing
3. *Ripeness
4. *Mootness
5. Political Question Doctrine
Prohibition on Advisory Opinion: -Arises when either the executive or legislature asks USSC for
ome.
Prohibition of Third-Party Standing
-Rule: π must assert its own legal rights not 3rd parties’ rights.
§ Exceptions to this requirement exist b/c right is about judicial economy and not about Constitution.
-Singleton Two Exception to Prohibition on Third Party Standing: When underlying justifications do not exist
· Either one is sufficient to allow third party standing.
1) Close Relationship Test: π must be:
1. Inextricably bound up with the 3rd party’s right which he is asserting; and
2. Interest must be aligned between the two parties.
· Ensures π is sufficiently motivated to effectively try the case.
2) Genuine Obstacle: Genuine obstacle For 3rd Party to Assert Its Own Rights
§ Third party’s absence does not mean that the litigation is unimportant to them.
-Singleton held that doctors trying to assert their patients right to abortion met the exception.
– Newdow: Courts should not decide a claim when standing is based on family law rights that are in dispute.
Ø No third party standing if the third party’s wishes contradict the assertion of those rights.
Determination of when review is appropriate: Ripeness and Mootness
Ripeness–Is it too early to bring suit?
-Often an issue in pre-enforcement review of a statute.
· Decide if there is anything to be gained by waiting (e.g. are issues properly focused).
-Purpose: Prevent violation of SOP by stopping courts usurping other branches law making process.
-Poe: Ripeness requires a real threat of enforcement which doesn’t exist since only 1 prosecution in 75 years.
-Abbot Laboratories Two Part Test for Ripeness:
1. Fitness of the issue for judicial review
1. Impact of the issue must be direct and immediate.
2. Needs to be probable that there will be enforcement b/c otherwise it would be an AO.
2. Hardship to the parties from withholding court consideration.
§ Costs of compliance and cost of non-compliance with the rule.
· Abbot labs: If drug manufacturers should have to put generic name on all packages was ripe.
o Distinguishable from Poe b/c it is highly probable that the π would be prosecuted for violation.
Mootness -Is it too late to bring this case?
-Rule: π must present a live controversy at all stages of federal court litigation.
· If harm is not occurring: Not case or controversy (Art. 3 §2 cl.1) and decision not have effect making it AO.
– Mootness doctrine is flexible and has three exceptions:
1. “Wrongs capable of repetition but evading review.”
Test for Exception to Mootness:
1. Injury likely to recur; and
2. Possible that it could happen again to the π; and
3. Injury is of such a short duration that it likely always will evade review.
· Fact is so short lived that it will terminate before the appellate process is over.
