Ø Article III and the Judicial Power of the US
v Judicial Power.
o The kinds of cases federal courts can hear:
§ Organized by parties and types of issues:
§ Judicial Power is distinct from jurisdiction.
§ Original jurisdiction – SS 2.2 – where states are parties, and those involving foreign dignitaries. Most often used in boundary disputes between states.
· The Constitution actually only creates one court – the Supreme Court. It also specifies its jurisdiction.
· Congress created the other courts.
· Jurisdiction of the Supreme Court:
o Original: Can’t be changed.
o The original jurisdiction of the Supreme Court can’t be expanded or contracted.
o Marbury v. Madison: midnight appointments. Marbury tried to bring the action under original jurisdiction in the Supreme Court. Chief Justice Marshall took the opportunity to 1) establish that the Constitution is the supreme law of the land, and 2) that the judiciary has the ultimate power to determine constitutionality.
§ These two principles were not specified in the Constitution.
§ Marshall determined that he did have the right to the writ of mandamus, and the court could compel delivery, but the Supreme Court did not have original jurisdiction.
§ Thing to remember – addresses whose word is final, not whose word is correct.
· Can the president veto based on his belief something is unconst, even if the SC said it was? Sure, he is free to use his veto any way he wants.
· A legislator can vote against a law on unconst. grounds. But a state court may not rule against what the SC has said.
· A president can try again by signing a law into effect, and getting it before the court.
o Appellate: Can be limited, by the exception clause. Multiple views. But can be enlarged.
1) The Congressional power is unlimited, except by other specific limits (like the Bill of Rights.)
Ex parte McCardle: Congress has the power to strip the Supreme Court of its appellate jurisdiction. Congress passed a repealing act after the SC made a decision regarding a writ of habeus corpus after the war. The SC backed away from confrontation with Congress and said that they could pass acts removing its appellate jurisdiction.
§ Not all power could be stripped, the Judiciary Act of 1789 remained.
§ Doubtful it would be upheld today.
2) The exceptions carved out by Congress must not destroy the “essential role of the Supreme Court” in the constitutional scheme.
3) Some Article III judges must be available to hear federal questions.
4) Congress can make exceptions to the appellate power only insofar as doing so is “necessary and proper” as a means of implementing some congressional power.
5) The ‘Supreme’ Court’s supremacy requires that any removal of appellate jurisdiction result in an increase in original jurisdiction. – Professor Claus. MvM stands in the way of this view.
6) The inferior tribunal nature of lower federal and state courts require that the Supreme Court be able to supervise them by writs, if not by appeal.
7) The clause only applies the Supreme Court findings of fact.
o Appellate: but can be enlarged to cover cases within
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· It is clear that governmental actors must always follow the SC’s unconstitutional ruling in the particular case.
· President can exercise his veto power, or his pardon power regardless.
o But he may not refuse to enforce certain laws, since that would undermine Congress’s ability to put certain laws on the books.
o How about allocation of resources? Arguable.
o Trickier – may a president keep enforcing the same law that was un’k in other circumstances? Wiretapping is illegal for a, he does it again for b? How is this different from relegislating, especially if he thinks the ct might change its mind?
o Discussions very controversial and active.
· Deference – sometimes a court’s ruling is not that a law is constitutional, but that it is not unconstitutional from the court’s perspective, which includes deference to other branches’ factual judgments.
· Executive refusals to enforce laws are difficult to get reviewed.
o This means that the executive may effectively get to veto twice based on the executive’s constitutional interpretation, which is at odds with the courts’.
· Supreme Court’s own rulings – it is unclear how much deference they should give them. When erroneous, erroneous and mischievous, or neither?
