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Constitutional Law II
Valparaiso University School of Law
Bodensteiner, Ivan E,

Constitutional law II – Professor Bodensteiner- Fall 2011
I. Federal Judicial Power
      A. see con law I notes for Interpretive and Congressional limits on Federal judicial power
      B. Justiciability Limits
            1. court developed
                  a. there must be a real, earnest and vital controversy to be decided (not a friendly nonadversarial proceeding)
                  b. necessary decision: the court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.” (absolutely necessary to a decision of the case)
                  c. narrow decision: no broader than is required by the precise facts of the case
                  d. if there is some other grounds on which to decide the case, use that first
                  e. party bringing the case must demonstrate some injury to be redressed
                  f. the court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits
                  g. court will first ascertain whether a construction of the statute is fairly possible by which the question can be avoided: deference to Congress for constitutionality
            2. Prohibition of advisory opinions
                  -court doesn’t issue advisory opinions
                  a. Hayburn’s case (1792) p32 – duty of making recommendations regarding the pensions of revolutionary war vets was not of a judicial nature – should be controlled by the legislature
                  b. Plaut v. Spendthrift Farm, Inc. (1995) p33
                        *1) cases must be adversarial
                        *2) and there must exist a substantial likelihood that a decision in favor of the claimant will bring   some change or have some effect (redressability)
                  c. Nashville, C. & St. L. Ry. v. Wallace (1933) p34 – case was justiciable “so long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy”
            3. Standing
                  a. whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues
                  b. two types of standing:
                        *1) constitutional: must have (1) injury, (2) causation (by defendant) and (3) redressability (remedy) (Article III requires standing before lawsuit)
                             -cases and controversies
                              a) Allen v. Wright (1984) p35 – π were parents of black school children in public schools undergoing desegregation; Δ: IRS; about giving tax breaks to segregated private schools despite policy not to.
                                    i) injury 1: they are harmed directly by gov. financial aid to discriminatory private schools
                                    ii) standing: they have the right to have the gov. avoid violations of the law – or – the gov. is creating an abstract stigmatization injury
                                    iii) injury 2: tax grants impair their ability to have their schools desegregated but: this must be fairly traceable to IRS action (problem)
                                    iv) Ct. says that this case is asking the court to restructure the way the exec branch enforces law so – sep. of powers problem
                                    v) holding: injuries claimed do not give π standing: injury 1 is not a judicially cognizable injury and 2 is not fairly traceable to IRS action so dismissed
                              b) Massachusetts v. Environmental Protection Agency (2007) supp. 1 – Clean Air act – state concerned about emissions from new vehicles and global warming. Statute gives procedural right to bring a lawsuit to challenge EPA – If congress creates a right, there is injury if they violate that right – statutory right violation
                                    i) seems to make a big difference that the suit is brought by a state: should that be important?
                              ii) What is the role of Congress? – if congress says that citizens can bring a suit against the EPA does that create a procedural right to sue?
                              KEY seems to be: the more real you can make the injury, the more likely you are to have standing.
                        2) prudential limitations – judge or court made limitations
                              a) 3rd party standing – litigant raising the rights of someone else
                              b) generalized grievance – could be raised by anyone (i.e. taxpayer)
                              c) Newdow?
                  c. injury requirement
                  -if congress creates a statutory right and it isn’t reconginized then it can serve as an injury
                        1) City of Los Angeles v. Lyons (1983) p42 – about damages, declaratory relief and an injunction to keep city from allowing cops to employ chokeholds in subduing citizens; held: can proceed for damages but not for injunction since he can’t/didn’t show that the chokehold would happen to him again
                                   KEY: apply injury, causation and redressability to each part of the case
                        2) Lujan v. Defenders of Wildlife (1992) p43 – challenge involving the consultation part of the Endangered Species Act asking that the gov. comply with regulations. Claim to injury is that the lack of consultation increases the rate of extinction – concrete examples of injury missing in this case as well as redressability problem
                        3) U.S. v. Hays (1995) p47 – π bring a case claiming racial gerrymandering but they don’t live in the district that is the primary focus of their case so they have not shown that they have been injured by the practice – no standing
                        4) Federal Election Commission v. Akins (1998) p47 – about the right to information created by Congress with regards to PACs – challenge to reporting requirement claiming that Amer. Israel Pub. Affair Comm. is not a Pac – statute authorized suit by anyone aggrieved by FEC decision. Held: Congress can create standing by statute and therefore the π had standing
                              KEY seems to be: the more real you can make the injury, the more likely you are to have standing.
                  d. Causation and Redressability
                        1) π must allege and prove that the Δ caused the harm, so that it is likely that a favorable court decision will remedy the injury
                        2) Linda R. S. v. Richard D. (1973) p48 – about the state policy of prosecuting the fathers of legitimate kids for child support but not the fathers of illegitimate kids
                              Held: no standing since the only definite outcome of prosecution is the jailing of the non-paying father and not money in the mother’s pocket – creates a redressability issue – what was she asking for? Just money or the opportunity to get money?
                        3) Warth v. Seldin (1975) p49 – about zoning which prevented multi-family and low income housing developments –
                              held: no standing since π could not demonstrate that the appropriate housing would be constructed without the exclusionary zoning practices. (causation and redressability)
                        4) Simon v. Eastern Kentucky Welfare Rights Org. (1976) p49 – about hospitals given tax-exempt status refusing needed medical care to π, fed law required that these hospitals provide free care to indigents and new revision limited the amount of care that must be given each year –
                              held: no standing since it was purely speculative whether the new law was responsible for the refusal of healthcare and π could not show that victory would change anything
                        5) Duke Power Co. v. Carolina Environmental Study Group (1978) p49 – about Congressional act that limits the liability of utility companies in the event of a nuclear reactor accident; π claimed that that this violates Due Process because it allowed injuries to occur without compensation
                              Held: there was standing since the reactor was being built in their area and this subjected them to many injuries and standing met through “but for” analysis, Act was found to be constitutional.
                  2)  Prudential Standing Requirements
                  A.  Prohibition of third party standing
                        1) a π can assert only those injuries that he of she has suffered; a π cannot present the claims of third parties who are not part of the lawsuit (generally 3rd party isn’t allowed)
                        2) exceptions must have:
                              *a) sufficient relationship between π and missing party
                              *b) likelihood that the third party can sue on its own behalf (hinderence)
                        2) Singleton v. Wulff (1976) p50 – doctors suing on behalf of poor women because Medicare does not pay for abortions (not medically necessary)
                              Held: this is an exception because of the woman’s need for the doctor (sufficient relationship) and the obstacles to the woman in suing herself (anonymity and mootness)
                        3) Barrows v. Jackson (1953) p52 – white person signed a racially restrictive covenant later sold his property to black person, then sued by white neighbors for breach of contract; raised the rights of blacks who were not parties to be free from discrimination
                              Held: was standing – it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court since they were not party to the contract and would otherwise not have any standing on their own
                        4) Craig v. Boren (1976) p53 – bartenders brought suit challenging an Oklahoma law that permitted women at age 18 to by beer but not men until they were 21, bartender claimed economic loss
                              Held: bartender had standing “vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or functions
                        5) Gilmore v. Utah (1976) p53 – mother sued for a stay of execution on behalf of her son who chose not to pursue habeas corpus action in federal court
                              Held: court chose not to hear mother’s claim saying that the son had waived his rights; Burger’s concurrence: she should have been denied standing since he waived his rights
            “did not 6) Elk Grove unified School District v. Newdow (2004) p53 – about an atheist objecting to his daughter having to recite the pledge of allegiance including “under God”, he was divorced, non-custodial parent and his wife and daughter did not object. This is about the right to direct the raising of the child. He claimed violation of the establishment clause on behalf of the child.
                              Held: no standing; this is a state issue since it directly involves family law rights and it is improper for the federal courts to step in and California law does not allow the father in this situation to sue as his daughter’s next friend.
                              Dissent wanted to get to the merits of the case
                  f. Prohibition of generalized grievances
                        1) this prevents individuals from suing if their only injury is as a citizen or a taxpayer concerned with having the government follow the law: 1) a citizen; or 2) taxpayer
                        2) U.S. v. Richardson (1974) p58 – federal taxpayer action involving publication of the expenditures of the CIA as provided for under the CIA act of 1949, freedom of information
                              Held: no standing – he should take his grievances to the press or the polls – failed both prongs of Flast- no logical link btwn the specific const. limit on t+s (fails both prongs of flast) 
                        3) Flast v. Cohen (1968)

om at least 25,000 voters with 200 coming from each of at least 50 counties. π denied inclusion on the ballot and challenged the law but by the time the case reached court the election was over.
                              Held: not moot since the problem is capable of repetition yet evading review and an important right
                        5) Roe v. Wade (1973) p99 – abortion law
                              Held: not moot since pregnancy can come more than once to each woman and the normal gestation period is too short to go through the court system – called “a classic justification to nonmootness”
                        6) DeFunis v. Odegaard (1974) p99 – white male denied admission to U. Of Washington Law School so challenged on the ground that the Univ.’s affirmative action program denied him equal protection. Obtained a preliminary injunction and was allowed to attend. Reached Sp. Ct. when he was a 3L and the School said he would be allowed to finish no matter the outcome
                              Held: moot since he was not likely to attend law school again and will complete his education at the school without any further court intervention
                        7) Friends of the Earth v. Laidlaw Environmental Services (2000) p100 – congress allowed citizen suits in the Clean Water Act – suit brought against Δ on the grounds that is was discharging too much mercury
                              Held: not moot since the Δ had quit polluting voluntarily through shutting down the facility it was free to start back up any time – the burden was now on the Δ to show that the action would never be repeated so there was enough in dispute to call for a finding of fact.
                        8) United States Parole Commission v. Geraghty (1980) p101 – about the parole process, the π and others had not had a class certified when π was released
                              Held: not moot – π and others given a chance to get the class certified and that class actions can still survive the mootness of the named π even if the class certification has been denied
                  ** did not use       9) Federal Election Commission v. Wisconsin Right To Life (2007) supp 21 – about time-prohibited advertisements aired too close to the date of election
                              Held: not moot because it presented a wrong capable of repetition but evading review even if the ads were not ones that the group would ever want to air again – the same issue not the same ads being contested
                  i. Political Question Doctrine
                        – this is about the separation of powers and the idea that there are some areas that the judiciary should leave to the legislative and executive branches – issue is: where is the power delegated according to the constitution?
                        1) Guarantee Clause and equal protection: apportionment and partisan gerrymandering
                              GC clause (Art IV, § 4) = the U.S. shall guarantee to every state in this union a republican form of government, and shall protect each state in this union against invasion; and on application of the legislature, or of the executive against domestic violence.
                              a) cases under the guarantee clause are non-justiciable – Luther v. Borden (1849) – it rests with the Congress to decide what government is the established one in a state.
                              b) Baker v. Carr (1962) p104 – apportionment cases – under the guarantee clause they are political questions so challenged under equal protection
                                    Held: not a political question – must apply the test on a case by case basis and that the guarantee clause has no bearing on Equal protection – look at subject matter not the parties involved
                                    BAKER CRITERIA: prominent on the surface of any case held to involve a political question is found
                                      1. a textually demonstrable constitutional commitment of the issue to a coordinate political department (const. gives it to another branch);  or
                                      2. a lack of judicially discoverable and manageable standards for resolving it; or
                                      3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
                                      4. the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
                                      5. an unusual need for unquestioning adherence to a political decision already made; or
                                      6. the potentiality of embarrassment from multifarious pronouncements by various departments of one question.