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Constitutional Law I
University of South Carolina School of Law
Seigel, Andrew M.

I. The Judicial Function and Its Limits

A. The Authority for Judicial Review

1. Marbury v. Madison

a. Background:

1) Before Marbury, there was no judicial review

b. Facts:

1) Marbury wants the court to issue a writ of mandamus to force the secretary of state to enforce his commission

2) Court looked at the act that gave the court the power to issue the writ of mandamus was unconstitutional because congress doesn’t have the power to increase the original jurisdiction of the court

c. Arguments

d. Interpretations of Marbury

2. The Development of Judicial Review post Marbury

3. Arguments for and against Judicial Review

4. Authority for Judicial Review of State court judgments

a. Martin v. Hunter’s Lessee

1) Virginia had taken land from a British citizen and given it to an American. This act violated a treaty the US had entered with England protecting rights of British citizens to own property in US. US supreme court ruled for the Brit, but the decision was overturned by Virginia court

2) Court based argument on supremacy clause and said that they had to be able to review state court decisions in order to ensure compliance with supreme law of land (constitution)

b. Cohens v. Virginia

1) Court held that state courts could not be trusted to protect federal rights because in many states the judicial salary is dependant on state legislatures

B. Limits on the Federal Judicial Power

1. Structural

a. no enforcement power

2. Formal – separation of powers

a. confirmation process

b. power of the purse

c. impeachment

d. reduce number of justices

e. Jurisdiction stripping

1) Based on exceptions and regulations clause – potentially the exception that eats the rule

2) Still cannot violate other provisions of the constitutions

3. Institutional – Role expectations of judges

4. Interpretive – internal constraint – only certain kinds of judicial interpretation are considered valid – no consensus as to interpretive method

a. Strategies of Constitutional Argument

1) Historical

2) Textual

3) Structural

4) Ethical – given the purposes of the constitution, it is outside the power of the government to pass certain kinds of laws

5) Prudential –

6) Doctrinal – argument from precedent

b. Modern Approaches

1) Originalist –

a) historical – ask what the constitution meant to the framers –

2) Non – Originalist

c. Second Amendment example

1) U.S. v. Emerson

2) Silveira v. Lockyer

5. Justiciability

a. Ban on Advisory Opinions

1) Policy

a) Resources are limited. The court’s time should not be spent resolving fictitious disputes

i. Refutation: Aren’t we wasting Congress’s time and money by allowing them to debate a pass a bill that may be ruled unconstitutional.

ii. Saving time is good, but if a bill’s passage is almost certain, isn’t it good to go ahead and get the adjudication over with?

b) A lost of constitutional questions are close and turn on pragmatic questions of fact. Seeing a statute in action might help sharpen the nuances of a statute.

i. Refutation: good lawyering in actual constitutional cases should be enough to raise all issues and sharpen all the nuances.

2) Opinion of the Justices – refused Jefferson’s (Sec. of State) request to rule on the constitutionality of a neutrality doctrine on the war between England and France.

3) Hayburn’s Case (1792) –

a) Congress adopted a law permitting Rev. War vets to file pension claims in 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.

b) The duty of recommendations regarding pensions was “not of a judicial nature”. They said it would violate the separation of powers because the judicial actions might be “revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deem radically inconsistent with the independence of that judicial power which is vested in the courts.”

4) Plaut v. Spendthrift Farm (1995)

a) Originally, the insider trading laws had no statute of limitations. Supreme court set it to 4 years. This left a bunch of cases (including Plaut) out of the statute. Congress then passed a law setting the SOL for these cases at six years (which they can do), and in that law said that cases that had been dismissed which fit under the new statute could be heard.

b) Court held that allowing the rehearing of decided cases was like congress passing a law that overturned a decision. They can’t do this, so the new law was unconstitutional.

b. Standing (must have Injury, Causation, and Redressibility)

1) Constitutional Standing Requirements

a) Allen v. Wright

i. IRS was instructed to deny tax exempt standing to racist private schools. Black parents of public school children sued stating that the IRS wasn’t doing this, and was subsidizing segregation. Two claims –

(a) first, that they were injured by being stigmatized as a race

(b) second, the subsidy for racist schools was hurting their childrens opportunity for a desegregated education

ii. Court held that “being stigmatized” is too abstract an injury and could not be recognized by the court. That “being offended” is a hypothetical injury

iii. Court held that the second claim constituted a valid injury, but failed to prove that the subsidy was actually resulting in the desegregation of the public schools

b) Injury

i. City of Los Angeles v. Lyons (1983)

(a) Guy was injured at a police stop by a chokehold, which was an approved method of law enforcement by the LAPD. Showed at least two other examples of people being hurt by this method. Sued for an injunction to stop using chokeholds.

(b) Court held that the injury was over, and since there was no proof that he would ever again be subjected to the chokehold. So the court required a concrete factual showing that he would be harmed again.

(c) Note: This holding is because he was asking for injunction rather than damages. He would have gotten standing

ii. Lujan v. Defenders of Wildlife (1992)

(a) Department of interior determined that the endangered species act did not extend beyond the US. Plaintiffs claimed 3 types of harm

(i) Harm to one part of the ecosystem hurts the whole ecosystem

(ii) People like zookeepers whose careers depend on biological diversity would be harmed

(iii) Procedural injury – that the statute allowed people to sue if the government wasn’t enfoceing properly

(b) court held that people without concrete plans to return had not suffered an injury

(c) Court liked the zookeeper argument better, but was rejected by majority because they thought this type of injury was a little too abstract

(d) Court held that statutorily allowing suit was unconstitutional because it would allow the judiciary to keep watch over actions of executive branch. The court said that this was essentially a generalized grievance

iii. U.S. v. Hays (1995)

iv. Fed. Elec. Comm. v. Akins (1998)

c) Causation and Redressibility

i. Warth v. Seldin (1975)

ii. Simon v. Eastern Kentucky Welfare (1976)

iii. Duke Power v. Carolina Environmental (1978)

2) Prudential Standing Requirements

a) Prohibition of Third-Party Standing

i. Singleton v. Wulff (1976)

ii. Barrows v. Jackson (1953)

iii. Craig v. Boren (1976)

iv. Gilmore v. Utah (1976)

v. Elk Grove v. Newdow (2004)

b) Prohibition of Generalized Grievances

i. U.S. v. Richardson (1974)

ii. Flast v. Cohen (1968)

iii. Valley Forge v. Americans United for Separation of Church and State (1982)

c. Ripeness – case must involve concrete disputes between genuine adversaries or will not be heard.

1) Characteristics

2) Cases

a) Poe v. Ullman (1961) – P challenges Conn. law prohibiting contraceptive. Court said that criminal statutes that are not enforced are not ripe for constitutional adjudication.

b) Abbott v. Gardner (1967) – Drug Companies claim federal agency exceeded its authority in issuing drug-labeling regulations. A pre-enforcement review of challenged regulations is ripe for judicial determination where the issue involved is a purely legal one and the impact of the regulation on the challenger is direct and immediate.

c) United Public Workers v. Mitchell (1947) – Challenged law prohibiting federal employees from engaging in political campaigns. Plaintiffs “seem clearly to seek advisory opinions upon broad claims… A hypothetical threat is not enough. We can only speculate as to the k

tes from taxing a federal entity because “the power to tax is the power to destroy” – it’s improper for the parts to regulate the whole.

2. Arguments for federalism

a. Decreases likelihood of federal tyranny

b. Enhances democratic rule by providing government closer to the people

c. Allows states to be laboratories for new ideas.

B. The Commerce Power

1. Article I, § 8 – “The Congress shall have the power…to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”

2. Four Eras of Constitutional Interpretation (generally):

a. The Initial Era – fairly broad interpretation of the commerce clause; but mostly didn’t do much

1) Gibbons v. Ogden (1824)

a) Facts: Dealt with commerce in regard to navigation between NJ and NY.

b) Rule: If a state law conflicts with a congressional act regulation commerce, the congressional act is controlling.

2) The Daniel Ball (1871) – gave Congress broad authority to license ships, even those operating entirely intrastate, so long as the boats were carrying goods that had come from another state or that ultimately would go to another state. Unsafe ships affect interstate commerce

3) The Trademark Cases (1878) – court invalidated the federal law that established a federal system for registering trademarks.

b. The 1890s-1937: A Limited Federal Commerce Power – decisions were split, but mostly against regulation.

1) Ways court restricted commerce power

a) Narrowly defined commerce

b) Applied restrictive view of “among the states”

c) Held that Congress violates the 10th amendment when it regulates matters left to state governments

2) What is Commerce?

a) U.S. V. Knight (1895) – Manufacturing isn’t commerce.

i. Facts: sugar monopoly

ii. Rule: The Commerce Clause does not empower Congress to regulate manufacturing.

iii. Reasoning: Commerce succeeds to manufacturing, and is not a part of it. Congress could control a monopoly of commerce, but manufacturing is not commerce, thus Congress cannot regulate it.

b) Carter v. Carter Coal (1936)

i. Facts: Coal Conservation Act sought to regulate aspects of coal mining and production.

ii. Rule: Production or manufacture of goods which are later to be shipped out of state is not interstate commerce and is not subject to federal regulation.

3) What does “among the states” mean?

a) Houston Railway v. U.S. (1914) [the Shreveport Rate Cases]

i. Rule: Congress has the power to regulate intrastate commerce when it impacts on interstate commerce. Whenever the interstate and intrastate activities of carriers are closely related, such that the regulation of one affects the other, it is Congress, and not the state, that has the final say.

b) A.L.A. Schechter Poultry v. U.S. (1935)

i. Rule: The Federal government has no authority to regulate intrastate transactions having an indirect effect on interstate commerce. A direct effect is necessary.

4) Does the 10th amendment limit congressional powers?

a) Hammer v. Dagenhart (1918)

i. Facts: child labor case

ii. Rule: Congress cannot, under its commerce power, pass a law prohibiting the transportation in interstate commerce of products of companies that employed children as laborers in violation of the terms of the law.

iii. Pretextual legislation – on its face it is constitutional, but court looks behind the legislation, to find the “true” purpose.

b) Champion v. Ames (1903) [The Lottery Case]