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Constitutional Law I
University of North Carolina School of Law
Nichol, Gene R.

I. Federal Judicial Power

A. Authority for Judicial Review
1. Marbury v. Madison(1803)
a. Congress may not expand jurisdiction granted in Art. III, section 2
i. Art. III specified certain instances and fed questions on appeal
b. Constitution is the supreme law of the land and judiciary is sole interpreter
i. the duty/province of the Judicial Department to say what the law
c. Gave the court the power to review. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void.
d. Court was given the final judicial review because it was the least powerful branch
e. Policy issue concerning wisdom and fairness of having an unelected, life tenured body making the final decision
f. Remaining relevant issue for the court: “you made your decision, how do you enforce it”
B.Congressional Control of Judicial Review of Federal Court
1. Ex Parte McCardle
a. Congress had passed a law in 1867 that permitted federal courts to grant habeus corpus relief to anyone held in violation of a federal law. In 1868, Congress specifically repealed the part of the bill that gave McCardle jurisdiction. Court held it lacked jurisdiction.
i. Broad view – Congress may prevent SC review of constitutional issues; cite McCardle as precedent
ii. Limited view – McCardle only establishes that if there are two statutory grounds for appeal, Congress may restrict one of them; opposed to eliminating entire categories of Supreme Court review such as abortion or school prayer
b. Congress may not take away Constitutionally based appellate review.
c. Art III says the appellate jurisdiction exists in all cases with such exceptions and under such regulations as Congress shall make. The Constitution itself gives appellate jurisdiction except cases Congress chooses to limit. Congress is allowed to take away jurisdiction as granted via the Constitution.
i. In this case, however, Congress had created the appellate review of persons held by state govt. Previous to the 1867 act, court could only hear habeaus corpus petitions of those in federal custody
2. United States v. Klein
a. Congress may not restrict Supreme Court jurisdiction as an attempt to dictate substantive outcomes
i. Congress may not prescribe the rule of decision
ii. Congress may not impair the power and effect of a Pres. Pardon
b. Legislative branch can’t impede the exclusive powers of other branches.
c. There are systems of checks and balances to regulate that allocation of power. Congress should not have ultimate power to strike down decisions of the other two branches of government.
C. Justiciability
1. Rationale
a. tied to separation of powers- we need to know when it’s necessary to defer to other branches
b. limited role of courts is effective in a democratic society
c. avoid purely ideological cases/problems from coming into the court
d. idea is to allow and encourage freedom until the point that the law needs to get involved
2. General requirements
a. Must be case or controversy
i. No advisory opinions
b. Plaintiff must have standing
i. Actual, concrete (distinct and palpable) injury in fact
ii. causal relationship; causation should be fairly traceable to the illegal actions of the defendant
iii. substantial likelihood that the injury can be relieved or redressed injury (redressability)
c. Must be ripe
d. Must not be moot
e. Must not be a political question
3. Standing
a. distinct and palpable injury in fact to the plaintiff
i. in order to have an injury, it requires something to be at stake
ii. these comes from the case and controversy requirement in Art. 3
iii. stops people from intermeddling trying to enforce other’s rights rather than their own
iv. Lujan v. Defenders of Wildlife
§ No standing –abstract, self-contained, non-instrumental right, ephemeral
§ standing perhaps by statute but it’s unconstitutional to allow standing that broad)
§ need to show definite future harm of extinction of wildlife in lands abroad; maybe by having definite travel plans
v. Flast v. Cohen
§ Held that a taxpayer has standing to sue the government to prevent an unconstitutional use of taxpayer funds.
§ Taxpayer must challenge an expenditure of Congress, not a reg. system
§ Congress is violating a particular constitutional provision, not just that it is exceeding the scope of its powers under the constitution
§ can’t sue just to have govt follow the law
vi. Warth v. Seldin
§ The plaintiffs brought action against a suburb of Rochester and against members of the Zoning Boards alleging that ordinances intentionally and wrongly excluded persons of low and moderate income from living there.
§ Held no standing because plaintiffs could not allege distinct and palpable harm to self
b. causal relationship; causation should be fairly traceable to the illegal actions of the defendant
c. substantial likelihood that the injury can be relieved or redressed injury (redressability)
d. Third Party Standing (Standing to assert the rights of others or a third party)
i. substantial obstacles to the party raising their own rights
ii. special relationship between the party sued and the third person
§ vendors asserted rights of customers to buy alcohol (Craig v. Boren)
§doctor’s asserting married couples rights to use contraceptive (Griswold v. Conneticut)
§Bush asserting the rights of Florida voters (Bush v. Gore)
4. Ripeness
a. when a case is not yet an issue: if something doesn’t need to be decided yet, then you don’t decide it; you wait until it becomes a problem
b. Standing v. ripeness: distinction- whether or not your injury is redressable and ripeness is where and when on the timeline it occurs;
i. Ripeness puts standing on the timeline (so does mootness)
c. Idea is to allow and encourage freedom until the point that the law needs to get involved
d. Two components of ripeness
i. actual or sufficient injury – already sustained or imminent; substantial hardship
ii. Balance whether better to let it proceed or to wait for more facts and how it plays out
§the more a question is a legal issue, the more likely it is to be heard
§ the more that consideration of an issue would be enhanced by particular facts, the less likely that the Court will find ripeness
e. Goldwater v. Carter
i. Senate considered a resolution declaring that Se

During Vietnam and the war in Iraq, the Supreme Court did not rule, but lower federal courts dismissed as political questions.
d. Congressional Self-Governance – Powell v. McCormick
i. Powell wasn’t permitted to take his seat in House. Powell then filed a suit claiming that the House could exclude him only if he failed to meet the age, citizenship, and residency requirements of the Constitution (Art I., §2).
ii. textually demonstrable commitment to Congress to review elected members, but Court may ensure that review is within constitutional limits
iii. case was justiciable; that it did not constitute a political question that pit one branch of government against another. Rather, it required “no more than an interpretation of the Constitution”.
e. Impeachment and Removal – Nixon (judge) v. U.S.
i. TDC that only the Senate should determine whether an individual should be acquitted or convicted; judiciary will not review the Senate’s use of a committee to hold a hearing and make a recommendation on an impeachment
ii. Leaves open the question of whether all challenges to impeachment are nonjusticiable; i.e. what would happen if Congress impeached President for an act that was lawful and within constitutional powers?
II. Federal Legislative Power – Commerce Power
A. General Rule
1. All federal power including legislative power of Congress must relate in some way to an express grant of power in the Constitution.
2. Under the 10th Amendment, all powers not granted to the federal government are reserved to the states or to the people; States may act unless the Constitution prohibits it. (police powers)
B. How to Evaluate constitutionality of Congressional Action
1. Does Congress have authority under the Constitution to legislate in this area?
2. Does the law violate another constitutional provision or doctrine, such as infringing with separation of powers or interfering with individual liberties?
C. McCulloch v. Maryland
1. Congress has powers through implied powers through const using rational basis test
2. rational basis test: are the ends legitimate and are the means plainly adapted for that purpose without being otherwise prohibited by the const
a. Implied power need only provide a rational justification to link with enumerated power
b. If congress acts in a way with reasonable linkage to one of its express authorities, then it’s ok
3. Congress needs an enumerated power – tax, spend, regulate commerce, etc.
As applied: Taxing and Spending power is express. Establishing a national bank is