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

CONSTITUTIONAL LAW II – Professor Ivan Bodensteiner
FALL 2012
I. The Separation of Federal Powers: Limits on the Federal Judicial Power
a)      These doctrines decide which cases a federal court can here and which must be dismissed.
b)      Justiciability includes the prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine.
c)      These doctrines are not expressly mentioned in the text of the Constitution or by the framers in drafting the document.
d)     They have been articulated by the SC.
e)      The Court has declared some of the Justiciability doctrines as a result of interpreting Art. III, §2 which defines the federal judicial power in terms of 9 categories of “cases” and “controversies”.
f)       The doctrines are also derived not just form the Constitution, but from prudent judicial administration.
i)        The constitutional vs. prudential distinction is important.
(1)   Congress, by statute, can override prudential decisions, but cannot override Constitutional decisions.
(2)   Note that Constitutional and prudential limits on Justiciability are the product of SC. decisions, but the Court determines in its decision if it is constitutional or prudential
(3)   Separating the doctrines along these lines is difficult because both reflect the same basic policy considerations.
(a)    Justiciability is closely tied to separation of powers.
(i)     They decide when judicial review is appropriate and when it review should be left to other branches of the government.
(b)   It conserves judicial resources.
(c)    Improves judicial decision making by providing the federal courts with concrete controversies best suited for judicial resolution.
(d)   It promotes fairness, especially to individuals that are not litigants before the court.
(e)    The justifications for limits on the judicial role must be balanced against the need for judicial review.
(i)     Federal courts must perform their essential function of upholding the Constitution  and preventing and redressing violations of federal laws.
(ii)   Critics say the Court has gone too far limiting justiciability and preventing federal courts from protecting and vindicating important constitutional rights.
g)      There is a clash between whether the rules for justiciability should be clear and predictable or if they should be flexible and more discretionary.
h)      Other limits on judicial power
i)        11thA
ii)      The Court will decide a case on nonconstitutional grounds if it can.
i)        Justiciability doctrines are the most significant principles defining access to the federal courts
j)    The prohibition against advisory opinions
i)        Art III’s limitation on federal judicial power is that federal courts cannot issue advisory opinions.
ii)      Many state courts are allowed to issue advisory opinions, so what are the benefits?
(1)   Prevent the legislature from wasting time by enacting unconstitutional laws.
iii)    What policies support the prohibition on federal courts?
(1)   Separation of powers – keeps the courts out of the legislative process
(2)   Conservation of judicial resources
(3)   Assures cases will be presented to the Court in terms of specific disputes, and not as hypothetical legal questions
(a)    The court can’t just give a decision about a non-enacted bill.
(b)   There has to be actual controversy.
iv)    Criteria to avoid being an advisory opinion
(1)   Must be an actual dispute between adverse litigants
(a)    US v Johnson – suit brought by P at the request of D who also financed the litigation had to be dismissed
(b)   George Washington—Sent a letter to the SC asking questions about the war between England and France and the SC declined to offer an opinion
(2)   There must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect
(a)    Hayburn’s case – Congress adopted a law allowing war veterans to file disability claims in federal circuit courts.  The judges of the courts were to inform the Secretary of War of the claimant’s disability at which point the Secretary could accept or reject the court’s recommendation.  Most of the justices found the assignment of these tasks to be unconstitutional, despite the fact that the statute itself was never ruled unconstitutional.  The duty of making decisions regarding pensions was not of a “judicial nature” and it violated the separation of powers.
(i)     Basically, Congress cannot vest review of the decisions of Art III in officials of the executive branch.
(ii)   Since SC decisions could be easily revised by an officer of the executive, it erodes the separation of powers.
(b)   C&S Air Lines v. Waterman Corp.- SC said federal courts cannot review Civil Aeronautics Board decisions warding international air routes because the president could disregard or modify the judicial ruling.
(c)    Lyons v. LA – No standing for a P’s future injuries.  Not a clear likelihood to get an injunction.
(d)   “Judgments within the powers vested in courts by Art. III may not lawfully be revised, overturned or refused faith and credit by another Department of Government.  To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form.”
(e)    Plaut v Spendthrift—federal statute was unconstitutional when it overturned a SC decision dismissing certain cases. 
(i)     Question: When does Congress do something that makes the SC operate in an advisory manner?
(ii)   Facts: In 1991, the SC held that a class action securities case filed under federal statute had a limitation period of 3 years from the time of the alleged violation and one year from the time that the facts of the violation became known.  Then Congress passed legislation stating that cases within the aforementioned class that were filed prior to the 1991 ruling could proceed if the case was permissible under the former law.
(iii) Holding: This law violates the separation of powers doctrine because it requires the courts to reopen cases on which a final judgment has already been rendered.  It violated the Art. III principle that the federal courts are allowed to “decide” cases.
(iv)  Analysis: The law would turn prior decisions into advisory opinions by saying that even though the courts’ reached final decisions based on the law at the time, those decisions can now be ignored.  This parallels the underlying finality reasoning in Hayburn’s case.  The federal courts are forbidden from issuing advisory opinions because they are empowered to decide “cases and controversies”.
(v)    Problem: Congress always has the ability to overturn SC statutory interpretations by amending the law.  The Court was concerned that Congress was reinstating cases that had been dismissed by the judiciary but it is not clear exactly why Congress cannot give people a cause of action that previously did not have one.  Ie. If the Court ruled that a group of Ps could not obtain relief under a particular civil rights law, then Congress may amend it to provide them with relief.
(vi) Subsequent case: Plaut was not applied in Miller v French, a case concerning the Prison Litigation Reform Act.  Congress was ordering the suspension of a court injunction, which basically overturned a final judgment.  O’Connor stressed that “prospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law.”  Unlike Plaut, this was not the “last word of the judicial department.”  So even though this had the effect of retroactively overturning a court’s order, it was permissible because Congress can require federal courts to revise their injunctions to be in compliance with changes in the law.
1.      If a case is pending (i.e. not final), AND Congress passes a new law, the pending cases use the NEW LAW!
2.      Retroactive decisions erode the principles of judicial review.
a.       There would be no finality.
(f)    Regardless of whether or not the P seeks monetary, injunctive, or declaratory relief, for the case to be justiciable, and for it not to a request for an advisory opinion, there must be (1) an actual dispute between adverse litigants, and (2) there must be a substantial likelihood that a favorable federal court decision will have some effect. 
(g)   Nashville v Wallace—The Court upheld the power of federal courts to issue declaratory judgements.  “So long as the case retains the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy.”  Declaratory judgments can be issued if there is (1) an actual dispute between adverse litigants and if there is (2) a substantial likelihood that the favorable federal court decision with bring about some change.
(i)     The Court focuses more on substance of claims, not the simple form that would prevent declaratory judgments.
v)      The other justiciability doctrines exist largely to ensure that federal courts will not issue advisory opinions, because the prohibition of

w under the Administrative Procedures Act of an Interstate Commerce Commission decision to increase freight rates.  Students contended the hike in freight rates would discourage the use of recycled goods because of the extra cost of shipping them.  The decrease in recycling would lead to more use of natural resources and thus more mining and pollution.  The students claimed their personal enjoyment of forests, streams, and mountains in the Washington, D.C. area would be lessened.
6.      Reconcile: In both Sierra and SCRAP, the P’s complaint had to specifically allege that they personally suffered or would suffer an injury.
7.      Lujan v. National Wildlife Federation
a.       Facts: The Endangered Species Act (ESA) requires federal agencies to consult with the Secretary of the Interior (D) to insure federally-funded projects do not threaten endangered species.  D later passed regulations so that the ESA no longer applied to projects overseas.  The ESA includes a citizen suit provision in which a person can bring suit if the ESA is violated.  Environmental protection groups, such as NWF, brought claims. 
The NWF alleged:
i.        (1) Injury-in-fact—Individual P’s had personally visited potentially impacted foreign sites to see endangered animals. (SC said there was no injury-in-fact.  Has to be concrete plans that P will revisit the harmed area in the future)
ii.      (2) Proposed an “ecosystem nexus” that confers standing on any person who uses part of a “contiguous ecosystem” even if the damage done is quite distant from that person. (SC said its way broad)
iii.    (3)Proposed a “vocational nexus” that confers standing whose profession is linked to endangered species affected by D’s decision.
iv.    Decision by the US Court of Appeals—Held that P had standing because they suffered a procedural injury since ESA’s citizen suit provision grants all persons a procedural right to the consultation. (SC said it was too broad)
v.      Decision by the SC—Standing requires three elements:
vi.    (1) Injury-in-fact: Invasion of a legally protected interest that is concrete and particularized and actual or imminent
vii.  (2) Traceability: Causation between the injury and conduct complained of which is traced to the defendant.
viii.(3) Redressabilty: Must be likely and not merely speculative that a favorable outcome will redress the injury. (SC said it is unlikely an injunction will fix the problem)
ix.    The “procedural injury” decision by the Court of Appeals was rejected and the SC maintained that there must be a concrete injury.
x.      Scalia—“To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual” right vindicable in the courts is to permit Congress to transfer from the president to the courts the Chief Executive’s most important constitutional duty, to take Care that the laws be faithfully executed.”
xi.    Dissent (Blackmun): There is sufficient injury and redressability to survive summary judgement.  Rejection of “procedural injuries” as a class insufficient for standing is vague and overbroad because most governmental conduct is procedural.  The ESA’s citizen suit provision does not transfer power from the Executive to the courts, so it does not violate Article III.
2.      US v. Hays—Only a person residing within an election district may argue that the lines for the district were unconstitutionally drawn in violation of equal protection. 
a.      Analysis: The decision seems a bit too restrictive.  Why wouldn’t individuals in neighboring districts also have standing? Drawing lines for one district inevitably affects the lines for neighboring districts.