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Federal Courts
University of Pennsylvania School of Law
Struve, Catherine T.

Judicial Review & Rules of Justiciability
General Considerations
Article III of the United States Constitution creates the federal judiciary and defines its powers. The language of the Article does five important things…

(1) Creates a Federal Judicial System: First, the initial words of Article III – “the judicial power of the United States shall be vested” – create a federal judicial system. Federal courts were desired to effectively implement the powers of the national government; there as fear that sate courts might not fully enforce and implement federal policies, especially where there was conflict between state and federal law. At a minimum, a federal judiciary could help provide the uniform interpretation of the Constitution and federal laws; it could also protect individual liberties.

(2) Creates Supreme Court and Permits Establishment of Lower Courts: Second, Article III vests the judicial power of the United States “in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish.” Congress established lower federal courts in its first judiciary act, and they have existed ever since.

(3) Insulates Federal Judges: Third, Article III assures the independence of the federal judiciary by according all federal judges life tenure “during good behavior,” and salaries that cannot be decreased during their time in office. This difference from state courts makes federal judges uniquely suited for the protection of constitutional rights.

(4) Cases and Controversies Defined: Forth, Article III defines the federal judicial power in terms of nine categories of cases and controversies. These nine categories fall into two major types of provisions. One set of clauses authorizes the federal courts to vindicate and enforce the powers of the federal government. The other authorizes the federal courts to serve an interstate umpiring function, resolving disputes between states and their citizens.

(5) Allocates Authority Between Supreme Court and Lower Courts: Fifth, Article III allocates judicial power between the Supreme Court and the lower federal courts. Article III states that the Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court is granted appellate jurisdiction, both as to law and fact, subject to such exceptions and under such regulations as Congress shall make.
Judicial Review
Article III courts have the power of judicial review, which enables them to determine the constitutionality of acts of the other two branches of the federal government and of the states. However, this power is limited by the “case and controversy” requirement and by justiciability doctrines.

Marbury v. Madison (1803) (created judicial review for the federal courts): Marbury filed suit in the United States Supreme Court seeking a writ of mandamus to compel Madison, as secretary of state, to deliver his judicial commission. Marbury claimed that the Judiciary Act of 1789 authorized the Supreme Court to grant mandamus in a proceeding filed originally in the Supreme Court. However, Madison claimed that the Constitution specifically limited the Court’s original jurisdiction to specific areas. Held: The Supreme Court has the power, under the Supremacy Clause and Article III, § 2 of the Constitution, to review acts of Congress which are repugnant to the Constitution and find them constitutional. The Court ruled against Marbury and held that it could not hear the case as a matter of original jurisdiction. The Court held that although the Judiciary Act of 1789 authorized such jurisdiction, the statute was unconstitutional and hence void.

1. Federal Courts are Courts of Limited Jurisdiction: Federal courts may not hear matters unless thee is constitutional authority, and Congress may not expand the jurisdiction granted in Article III of the Constitution.

i) Limited Original Jurisdiction: The Court in Marbury ruled that Article III creates the ceiling on the Supreme Court’s original jurisdiction. Congress cannot authorize original jurisdiction greater than that provided for within Article III.

2. Role of Judiciary in Separations of Powers Doctrine: “It is emphatically the province and duty of the judicial department to say what the law is.” The Constitution imposes limits on government powers and those limits are meaningless unless subject to judicial enforcement.
Private v. Public Rights Models

3. Dispute Resolution or Private Rights Model: Some claim that the power of judicial review exists only as a necessary incident of the power to decide cases. The definition of such “cases” should be restricted to the kinds of disputes historically viewed as appropriate for judicial resolution – paradigmatically, those in which a defendant’s violation of a legal duty to the plaintiff has caused a distinct and palpable injury to an economic of other legally protected interest. Courts should avoid any role as a general overseer of government conduct, and should especially avoid the award of remedies that invade traditional and legislative prerogatives.

E.g. Frothingham

4. Public Rights Model: A more diffused conception of the function of courts in public law matters, which depicts constitutional interpretation by the courts as other than an incident of the power to resolve particular disputes between identified litigants, is called the public rights model. Advocates for this model argue that the judiciary should not be viewed as a mere settler of disputes, but rather as an institution with a distinctive capacity to declare and explicate public values – norms that transcend individual controversies.

E.g. Flast

5. Connection to Standing: The private v. public model factors into standing doctrine because it determines how broad or narrow the claim needs to be.
Justiciability Rules Generally
Article III courts are only authorized to hear judicially cognizable disputes. In addition to the “case and controversy” limits set forth in Article III, the federal courts have developed a set of sub-constitutional factors – based on prudence – that dictate whether a dispute should be heard and/or decided.

6. Reasoning: Justiciability rules are based on separation of powers concerns and define what the court may hear and what the court must defer to other branches of the government. They also conserve judicial resources allowing the federal courts to focus their attention on the matters most deserving of review. Finally, they improve judicial decision-making by providing the federal courts with concrete controversies which will be zealously litigated for judicial resolution.
Advisory Opinions
Federal courts will notissue advisory opinions.

7. Reasoning: (1) Separation of powers is maintained by keeping the courts out of the legislative process. The judicial role is limited to deciding actual disputes; it does not include giving advice to Congress or the President; (2) Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature; (3) Helps ensure that cases will be presented to the Court in terns of specific disputes, not as hypothetical legal questions.

8. TEST: In order for a case to be justiciable and not be an advisory opinion, two criteria must be met…

(1) First, there must be an ACTUAL DISPUTE between adverse litigants


(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.

9. Declaratory Judgments: Congress adopted the Declaratory Judgment Act of 1934, authorizing a federal court to issue a declaratory judgment in a “case or controversy within its jurisdiction.” Accordingly, declaratory judgments are justiciable so long as they meet the requirement for judicial review.

Aetna Life Insurance Co. v. Haworth(1937): The court upheld the constitutionality of the DJA. The Court stated that “where thee is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages.”

10. Distinguish from State Courts: State courts are authorized to provide opinions about the constitutionality of pending legislation or on constitutional questions referred to them by other branches of government. This is beneficial because these ruling can prevent the enactment of unconstitutional laws and save legislature the effort of adopting a statute that will later be struck down.
A federal court will not decide a case if its decision is liable to be overturned by one of the coordinate branches of the federal government. This is because if a federal court judgment could be reversed or set aside by either the executive or the legislative branch, such action would violate the principle of separation of powers. It would interfere with the independence of the judicial branch by depriving its judgments of finality.

Heyburn’s Case (1792) (no decisions that can be overturned by coordinate branches): The Court considered whether federal courts could express nonbinding opinions on the amount of benefits owed by Revolutionary War veterans. Congress adopted a law permitting these veterans to file pension claims in the U.S. Circuit Courts. The judges of these courts were to inform the secretary of war of the nature of the claimant’s disability and the amount of benefits to be paid. The secretary could refuse to follow the court’s recommendation. Held: The assignment of these tasks was unconstitutional. The duty of making recommendations regarding pension was “not of a judicial nature,” and it would violate separation of powers because the judicial actions might be “revised and controlled by the legislature, and by an officer of the executive department. Such revision and control is radically inconsistent with the independence of the judicial power vested in the federal courts.

11. Exception – Presidential Pardons: Although presidential pardons seems to wipe out judicial decisions (thus compromises finality of criminal law decisions), this is a constitutionally recognized exception (Article II) and only occur in the most minimal sense (very rare exception).

12. Exception – Immigration: Executive branch can rule on immigration issues – i.e. deportation orders.

13. Exception – Legislative Revision: Although Congress is forbidden from granting monetary relief to a party which a federal court has ruled is entitled to none (retrospective = damages), Congress may require federal courts to revise their injunctio

hat any person may commence a civil suit to enjoin a violation of the Act. Held: Congress could not create standing in this manner. To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an individual right is to permit Congress to transfer from the president to the courts the Executive’s constitutional duty, to take care than the laws be faithfully executed.

Federal Elections Commission v. Atkins (1998) (statutory right to information created standing): A group of voters brought suit challenging a decision by the FEC that the American Israel Public Affairs Committee is not a “political committee” subject to regulation and reporting requirements under the Federal Elections Campaign Act. A federal statute authorized suit by any person “aggrieved” by a FEC decision. Held: Court granted standing and concluded that Congress had crated a right to information about political committees and that the plaintiffs were denied the information by virtue of the FEC’s decision. The statute had created a right to information that would not exist without it, and the alleged infringement of that statutory right was sufficient to meet Article III standing.

19. Causation and Redressability: A plaintiff must also allege and prove that his personal injury is fairly traceable to the defendant’s allegedly unlawful conduct and is likely to be redressed by the requested relief.

Allen v. Wright(1984) (stigmatized injury not traceable to government actions): Parents of black school children brought a class action challenging the failure of the IRS to carry out its statutory obligation to deny tax-exempt status to racially-discriminatory schools. Plaintiffs claimed two injuries: (1) they and their children were stigmatized by government financial aid to schools that discriminate; and (2) their children’s chances to receive an integrated education were diminished by the continued tax breaks to discriminatory schools. Held: The Supreme Court acknowledge that the claim stated an injury, but denied standing based on absence of causation. The injury alleged is not fairly traceable to the government conduct the plaintiffs challenge as unlawful. From the perspective of the IRS, the injury to respondents is highly indirect and results from the independent action of some third party not before the court.

20. Qui Tam Actions: Qui tam is a legal provision in the United States under the False Claims Act, which allows for a private individual or whistleblower with knowledge of past or present fraud committed against the U.S. federal government to bring suit on its behalf.
A case is moot when circumstances have changed to such an extent that the party can no longer obtain judicial relief that will be of any use. An actual controversy must exist at all stages of federal court proceedings, both at the trial and appellate levels. If events subsequent to the filing of a case resolve the dispute, the case should be dismissed as moot. This rule is derived from Article III’s prohibition against federal courts issuing advisory opinions.

DeFunis v. Odegaard (1974) (law student in third year seeking admission is moot): Plaintiff, a white male, applied for admission to the Univ. of Wash. Law School and was denied. He sued the school, contending that he was discriminated against because of the school’s preferential treatment of minority candidates. The trial court issued a prelim injunction admitting the plaintiff to law school while the case was pending. By the time the case had reached the Supreme Court, the plaintiff was in his final year and the school stipulated that the plaintiff would be allowed to complete his studies regardless of the outcome. Held: The Supreme Court held that the case was moot because the controversy between the parties has thus clearly ceased to be definite and concrete and no longer touches the legal relations of parties having adverse legal interests.

21. Exception – Wrongs Capable of Repetition Yet Evading Review: A case is not dismissed, although the plaintiff’s claim is moot, if the injury is one likely to recur and if the injury is of an inherently short duration that would make complete federal court review impossible. Recent decisions emphasize that the relevant question is the possibility of recurrence with respect to the complaining party, not another member at large.