Federal Judicial Power
I. Source of Power – Article III
a. Subject matter limits
i. Cases in law and equity from constitution
ii. Treaties made
iii. Cases affecting ambassadors, other public ministers and consuls
iv. Admiralty and maritime jurisdiction
v. Controversies to which the US is a party
vi. Controversies between two or more states., between a state and citizen of another state, between citizens from different states, citizen and another country.
vii. Between citizens of same state claiming land under grants of different states.
b. Must be case or controversy
II. Judicial Power and other Branches
a. Judicial review – ability to declare conflict with constitution (Marbury)
i. Court has final word, is “law of the land.” (cooper).
b. Power over executive – (Marbury)
i. No immunity for any office – all subject to mandamus or injunction
ii. But court won’t order acts within political discretion (????)
c. Power over state supreme courts
i. Supremacy clause – Article 6: “constitution is law of land. Federal law, if in direct conflict with state law, prevails.
ii. Policy: concern about uniformity of interpretation of constitution
III. Congressional Control over Judiciary
a. Congress must grant jurisdiction in the positive (article III)
i. And congress can also take (appellate) jurisdiction away, even during an ongoing case (McCardle)
b. Exceptions to Congress’ power to control jurisdiction
i. Congress can’t exercise judicial power (????)
ii. Other limits in Constitution? (external limits). (????)
c. US Supreme Court – jurisdiction “stripping”
i. Congress can’t remove original jurisdiction given by Article III
ii. Essential functions argument as a limit on Congress?
iii. Practical problems
1. Freeze SCT precedent (????)
2. Lack of uniformity in lower court decisions
iv. Military commission act: No SC jur. Over guantanomo prisoners.
d. Lower federal courts – jurisdiction “stripping”
i. Even fewer theoretical limits
ii. Power to create may mean power to destroy
iii. If abolished, state courts could still hear cases
f. Senate confirmation
g. Constitutional amendment
i. 11th, states rights
ii. 14th, birthright for citizenship (overruling dred scott)
iii. 16th income tax
iv. 26th, voting age to 18
IV. Executive Control over judiciary
a. Power to appoint, subject to senate confirmation
a. Article III “Case or Controversy” requirement
i. “the judicial power shall extend to all cases and co
b. Mootness – case filed too late
i. Exception – capable of repetition yet evading review
V. Political Question: roots in SOP, not Art. III. (cases are so touchy, so political, that courts shouldn’t take them. Not court’s job, but up to executive or legislative. Courts likely to find in foreign policy and treaties, wars; impeachment. Court doesn’t want to make policy.
a. Textually demonstrable commitment
i. Is it in the text of constitution that congress or P does this?
b. Lack of judicially discoverable and manageable standards
i. If no standards then there’s a clue that we shouldn’t decide it.
c. Danger of lack of respect for coordinate branches (including the supreme court itself, if decision isn’t respected).
I. Necessary and proper clause
a. Article I §8: “the congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers….
b. McCullogh v. Maryland
i. Can congress create a bank
Marshall says history creates pr