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Constitutional Law II
Valparaiso University School of Law
Levinson, Rosalie Berger

Con Law II

Law 250 HA

Fall 2012

Unit I: The Separation of Federal Powers: Limits on the Federal Judicial Power

Chapter 1: The Federal Judicial Power

Part A: Prohibition Against Advisory Opinions

Part B: Standing

Part C: Ripeness

Part D: Mootness

Part E: The Political Question Doctrine

Unit II: The Federal Executive Power

Chapter 3: The Federal Executive Power

Part A: Inherent Presidential Power

Part B: The Authority of Congress to Increase Executive Power

Part C: The Constitutional Problems of the Administrative State

Part D: Presidential Power and the War on Terrorism

Unit III: Freedom of Expression

Chapter 9: First Amendment: Freedom of Expression

Part A: Introduction

Part B: Free Speech Methodology

Part C: Types of Unprotected and Less Protected Speech

Part D: Places Available for Speech

Part E: Freedom of Association

Part F: Freedom of the Press

Unit IV: The Religion Clauses

Chapter 10: First Amendment: Freedom of Religion

Part A: Introduction

Part B: The Free Exercise Clause

Part C: The Establishment Clause

Unit I

The Separation of Federal Power:

Limits on the Federal Judicial Power

Chapter 1: The Federal Judicial Power

Justiciability Limits

1. Introduction to Justiciability (AKA Case or Controversy) Doctrines

a. Function of justiciability doctrines

i. Claimant must meet justiciability standards to bring a case in federal court

b. FIVE Justiciability (Case or Controversy) Requirements

i. Prohibition Against Advisory Opinions

ii. Standing (WHO)

iii. Mootness (WHEN)

iv. Ripeness (WHY)

v. Political Question (WHAT)

c. Two Types of Justiciability Doctrines

i. Constitutional Justiciability Doctrines

1. Defined

a. Congress cannot pass a statute that pre-empts constitutional justiciability doctrines because the authority behind these doctrines comes directly from Art III

ii. Prudential Justiciability Doctrines

1. Defined

a. Congress can pass statute to amend prudential justiciability doctrines because the authority behind these doctrines is judge made and not directly from Art III.

iii. *NOTE: ALL Justiciability Doctrines are Judge Made

d. SEVEN Principle of Avoidance employed by the court to avoid reaching a constitutional question unless absolutely necessary:

i. Court will not decide Constitutionality of legislation in a non-adversarial proceeding

ii. Court will not anticipate a question of constitutional law (must wait for it to arise in an actual case)

iii. Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied

iv. Court will not resolve a case by answering a constitutional question if there is some other means to resolve the case

v. Court will not pass upon validity of a statute based on a complaint by a person that was never injured by the statute

vi. Court will not pass upon validity of statute based on a person who has enjoyed the benefit of the statute

vii. The court will construe statutes so as to avoid constitutional issues when possible

2. Prohibition on Advisory Opinions

a. General Rule

i. Supreme Court will not issue an opinion indicating how they will rule on a given issue before the issue before them in an actual case or controversy.

ii. Example:

1. Claimant brings a case before the S.Ct. to ask if Obamacare is constitutional before the law is passed

2. Result

a. Court will NOT hear the case

b. Rationale for Prohibition against advisory opinions

i. Reserve judicial resources

ii. Separation of Powers

1. Court’s role is to interpret laws, NOT make laws

iii. Preserve adversarial process

1. Best decisions are made though adversarial process where two opposing parties make their best arguments and court makes decision.

b. 2 Characteristics Required to make an Opinion NOT an Advisory Opinion

i. Must be actual dispute between litigants

ii. Must be substantial likelihood that a federal court decision will have an impact

3. Standing

a. Two Types of Standing Requirements

i. Constitutional Standing Requirements

ii. Prudential Standing Requirements

b. Constitutional Standing Requirements

i. THREE Constitutional Aspects to Standing

1. Injury

2. Causation

3. Redressability

ii. Injury

1. Bifurcated Standing

a. All claims for relief must have standing

i. E.g. If you bring action for damages and injunction, you must have standing for BOTH damages claim and injunction claim.

2. Example Allen v. Wright

a. Where the court found parents of minority children did not have standing to bring challenge to IRS regulations for denying tax exempt status to private schools that discriminated against racial minorities

3. Special Standing for States Creation of Injury by Congress

a. Congress has the power to define injuries and articulate chains of causation to create a controversy

i. E.g. see Mass v. EPA

1. Where Mass could bring suit to force EPA to enforce EPA provisions

ii. E.g. statute creates a statutory right… violation of right constitutes cause of action

1. Example: FHA gives a right of all citizens to live in integrated neighborhoods

2. Significance: This right gives whites ability to live in integrated neighborhood, so a white can bring suit to allow blacks into neighborhood

4. Personal Injury and Injunctive Relief

a. Must be able to show that there is an ongoing violation of the law.

b. See E.G. LAPD v. Lyons

i. Lyons could not obtain an injunction for the choke hold because there was no evidence that Lyons would be arrested again and subject to the choke hold .

5. Case Examples:

a. Lyons (no standing where plaintiff brought suit for preliminary injunction for LAPD choke holds but could not show that he personally would be subject to choke hold again)

b. Lugan (no standing where plaintiff brought suit due to federally funded programs in shri lanka that caused extinction of endangered species)

c. Hays (no standing where minority citizens brought suit against state of LO alleging that election lines were gerrymandering to segregate voters because voters did not live in the gerrymandered districts)

iii. Causation

iv. Redressability

1. Linda R.S. (No standing where mother challenged TX policy of prosecuting fathers of legitimate children for not paying child support but not fathers of illegitimate children because even if the policy were struck down – no evidence that mom would get more child support.

c. Prudential Standing Requirements

i. TWO Prudential Aspects to Standing

1. A party may only assert his own rights

2. A plaintiff may NOT sue as a taxpayer who shares a grievance in common with all other tax payers

ii. A party may only assert his own rights

1. Exception (See Bond)

a. Individual may assert injury from Gov. action taken in excess of authority that federalism defines

i. Rationale

1. 10 A protects individuals AND States

2. Where the court held a person indicted for violating a federal statute has standing to challenge its validity on ground that, by enacting it, congress exceeded its powers under the constitution, thus intruding upon the sovereignty and authority of the states.

3. Court REJECTED argument that claimant had not standing because he brought action on behalf of state.

iii. A plaintiff may NOT sue as a taxpayer who shares a grievance in common with all other tax payers

1. General Rule

a. A taxpayer may not bring suit based solely on the fact that they are a tax payer.

b. No Claim for Stigmatic Injury

i. Knowing that the Gov. is not following the law is NOT enough to bring a claim.

2. EXCEPTION (Flast)

a. Tax payer can bring action based on establishment clause

i. Rational: Every citizen has a personal right not to have their tax dollars send on a specific religion

b. TWO Prongs

i. Must be based on taxing and spending clause

ii. Must be asserting challenge based on establishment clause

c. This is the ONLY exception to prohibition against generalized grievance and court will NOT extend it.

i. E.g. In Hein court refused to extend Flast Exception to Executive spending on religious orgs.

1. Court distinguished executive v. congress spending

ii. E.g. In Winn court refused to extent Flast exception to tax credits reasoning that there is a constitutional difference between Gov. collecting taxes and Gov. saying you don’t have to pay taxes

4. Ripeness

a. Derived from Art III

b. Standing v. Ripeness

i. Standing = WHO

ii. Ripeness = WHEN

1. Very few cases on ripeness because standing is more important.

c. Function of Ripeness

i. Separate matters that are premature for review because the injury is speculative and never may occur, from those cases that are appropriate for federal court action

d. Overlap with Standing

i. Standing

1. Plaintiff must demonstrate that an injury has occurred or imminently will occur

ii. Ripeness

1. Plaintiff must

nd manageable standards for resolving it

iii. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion

iv. the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of Gov.

v. an unusual need for unquestioning adherence to a political decision already made

vi. the potentialty of embarrassment from multifarious pronouncements by various departments on one question

c. 4 Areas Where Political Question Doctrine has been Applied

i. Gerrymandering election cases

ii. challenges to restrictions on congressional membership – where the political question doctrine was rejected

iii. challenges to the president’s conduct of foreign policy

iv. challenges to the impeachment process – where the political question doctrine was applied

d. Gerrymandering


1. Cases under the guarantee clause are nonjusticiable

a. Gerrymandering cases traditionally brought under the Guarantee clause Art IV § 4 which guarantees every state a republic form of Gov.

2. NOTE: S.Ct. has NOT held that all political gerrymandering cases are non-justiciable…but in all the cases it has heard, it has found political gerrymandering to be a nonjusticiable political question.

ii. Political gerrymandering cases are properly justiciable under the equal protection clause

1. Apportionment must been one person one vote standard

2. See Indiana case example

a. Political lines were drawn in Indiana to give democrats a majority of popular votes but only a minority of the seats I the legislature

iii. EXAMPLE Baker v. Carr

1. Tennessee voters brought suit because their voting districts had not been reapportioned since 1901.

2. Court held The Guaranty clause may not be used as a source of a constitutional standard for invalidating state action, but an equal protection claim may be so used where it does not implicate a political question

3. Political question because The relationship between the judiciary and the coordinate branches of Gov. and not the judiciary’s relationship to the states which gives rise to the political question

iv. EXAMPLE: Vieth v. Jubelirer (Patrician Political Gerrymandering)

1. Court found there were no justiciable standards RE patrician political gerrymandering….HOWEVER…the court has NOT held that patrician political gerrymandering is nonjusticiable…it merely held that it was nonjusticable in this case.

e. Congressional Self-governance

i. General Rule

1. Political question doctrine does not bar the courts from deciding whether congress has power to refuse to seat a member elect

ii. EXAMPLE Powell v. McCormack

1. Petitioner was elected as a congressman in 1966. Due to questionable activity by Powell (misallocation of funds), Powell was not allowed to take his seat. Democratic members-elect met and voted to remove Powell as chairman of Committee on Labor and Education.

2. Court found House does NOT have power to exclude a member-elect from admission to the house based on criteria other than that specifically listed in Art I § 5… Congress has power to punish members for disorderly conduct once within congress and to remove them in extreme circumstances, but congress does NOT have power to exclude a popularly elected official.

f. Foreign Policy

i. General Rule

1. The conduct of foreign relations is governed by the executive and the legislature…and is NOT subject to judicial inquiry or review

ii. EXAMPLE Goldwater v. Carter

1. President carter rescinded a treaty with Taiwan. Senator Goldwater brought a constitutional challenge arguing that the senate must rescind a treaty, just as the senate must ratify the treaty