CON LAW I OUTLINE- Levinson
I. Federal Judicial Power
a. Main principles of Marbury:
-Power of the court to review non-discretionary executive conduct.
-Power of the court to review acts of Congress as to their constitutionality- it is the duty of judiciary to determine the law
-Article III vs. Judiciary Act- they’re in conflict so Constitution survives
-Federal judiciary is the final arbiter in interpretation of the Constitution
b. -U.S. v. Emerson- CAN ONLY CHALLENGE FEDERAL LAWS WITH CONSTITUTION- Must look at text, historical analysis, framers’ intent, tradition, contemporary values (this is controversial- could say the Constitution was intentionally written broadly so it could survive the times), precedent (what value should they put on past decisions? People won’t put value on their decisions then no one would listen to them- here we have the Miller case)- we discussed the issues outlined above. Should interpret all of the amendments with the same values
-If Congress passes law saying Supreme Court does not have the jurisdiction to hear cases involving prayer. Can Congress do this?
-Arguments saying Congress CAN do this:
1. Text- Article III- says jurisdiction of the Supreme Court can be limited by Congress through “exceptions”
2. Check on Supreme Court’s powers
3. Precedent- says the Supreme Court cannot hear this case since Congress said so (Ex Parte McCardle above- but they could still hear habeas corpus acts so they didn’t cut off all of Supreme Court review, not all avenues were cut off)
-Arguments saying Congress CANNOT do this:
1. Separation of powers- limit Congress’s power to restrict the Supreme Court
2. Framers’ Intent- you can argue this for any issue- use the amendment process
3. Look at the entire Constitution- within this are checks and balances and within the Constitution there is an amendment process that should be used to put a check on the Supreme Court- it could also violate other parts of the Constitution
4. Precedent- the decision above was only a limited decision because it only cut off one avenue, they still had original jurisdiction and could hear some cases, so precedent is unclear (Ex Parte McCardle)
II. Federal Legislative Power- Article I of Constitution defines powers of Congress
a. Congress may act only if there is express or implied authority. State governments can do anything not eliminated by Constitution.
b. Necessary and Proper Clause- Congress can pass all laws that are necessary and proper to carry out its authority. Congress can use any means not prohibited by the Constitution to carry out its powers.
c. Taxing, Spending, and Commerce Clause
i. Congress may tax and spend through the general welfare. 1937-1995 the Supreme Court broadly defined the scope of Commerce Clause authority- there was never a law found that exceeded Congress’s Commerce Clause Authority. 1995-present Supreme Court placed substantial limits on Commerce Clause.
ii. The word “among” shows it means intermingled and includes commerce among states and foreign nations (if it is with another nation, it does not matter that it is wholly in one state, the federal government gets involved). It must concern more than one state. If it is completely internal, it is reserved to the state itself.
iii. The court REJECTS the argument that Congress can regulate noneconomic, violent crime based solely on the conduct’s aggregate affect on interstate commerce. With the substantial effect, we must first ask if the activity is commercial or economic. If not, then no deference (deference is the general rule, you usually take what the legislature has said). LEVINSON: If there’s no rational basis, you cannot use aggregate requirement and need a more direct link. You also have to make sure there’s a jur
vernments- congress could prohibit states from releasing addresses from drivers bureaus because harmful commercial behavior
e. Congress’s power under Section 5 of 14th amendment
i. Authorizes Congress to adopt laws to enforce the 14th amendment- the key rule to remember is that congress cannot create new rights or expand the scope of rights. Can adopt laws that prevent or remedy violation of rights recognized by the courts, but such laws must be narrowly tailored, or proportionate and congruent
III. Federalism as a limit on state and local government power
-The 11th Amendment (which says states cannot be sued in federal court) can be limited only by the 14th amendment, section 5. Congress can abrogate the 11th amendment with § 5 of the 14th amendment, but Congress cannot abrogate the 11th amendment with Article I because the 11th amendment came after Article I but the 14th amendment came after the 11th. The 14th amendment is the ONLY way Congress can override the 11th amendment to get monetary damages from states. Article I cannot be used to override the 11th amendment. Even though Congress can go beyond the law, it must be congruent and proportionate and necessary to deter or remedy violations. Congress cannot use its § 5 power to create new rights or to expand the scope of rights. Congress can only enact laws to prevent or remedy the violations of rights recognized by the court and these laws had to be “proportionate” and “congruent” to the problem.
-Congress has power to act under § 5 to remedy gender and race discrimination.
