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Constitutional Law I
Villanova University School of Law
Lanctot, Catherine J.

 Constitutional Law
I.          Source of Judicial Power
            A. Authority for Judicial Review
1. Separation of Powers – Goal is to prevent one branch of government from gaining too much power and exerting too much power on the people
2. Checks and Balances – various branches have control over the other branch
                        3. Federalism – relationship between federal government and the states
B. Marbury v. Madison (1803) – Courts have the power to declare acts of Congress unconstitutional
                        1. Three issues to decide:
                                    a. Does Marbury have a right to the commission?
i. Yes, the right was vested when the commission was sealed, not when it was delivered.
b. If so, and the right has been violated, does Marbury deserve a remedy?
i. Ubi jus, ibi remedium – Where there is a right, there is a remedy
ii. Holmes view (opposite) – start by looking for a remedy in order to determine if there is a right. If the law will protect it, we may call it a right.
c.       Is the writ of mandamus the proper remedy?
i.                    Yes – it can be supervised by the court without exhausting the executive branch
2.      Does the Court have the power to issue the writ of mandamus?
a.       Marbury’s argument – Judiciary Act of 1789 §13 authorizes the court to issue a writ of mandamus
b.      Madison’s argument – USSC has the power to declare the act unconstitutional and it is unconstitutional
                                                                                                  i.      §13 never refers to the original jurisdiction of the USSC (only appellate jurisdiction)
3.      Does the Court have the power to declare §13 unconstitutional?
a.       Constitution does not say that the court can do that
b.      Congress does not have the authority to expand the jurisdiction of the court
c.       A law that does not conform to the Constitution would not be enforceable
d.      It is the duty of the court’s to decide what the law is
4.      How broad is the holding in Marbury?
a.       Argument 1: The holding is broad. The court has the power to declare a law unconstitutional.
b.      Argument 2: The holding is narrow. Marshall wasn’t claiming authority – Congress was the one on the offense. They tried to mess with the constitutional basis for the jurisdiction of the Supreme Court. 
C.     Martin v. Hunter’s Lessee
1. Does the USSC have jurisdiction to hear appeals from the highest court of the state?
            a. Federalism issue
            D. Cohens v. Virginia
                        1. No federal court jurisdiction
2. State courts could not be trusted to adequately protect federal rights because the judges are dependent for office of the legislature.
II.        Limitations on Judicial Power
A.    Two types of limitations:
1.      Limitations that Congress imposes on the Court
2.      Justiciability Doctrines – judicially created
B.     Congressional Limitations
1.      Article III – Congress can make exceptions and regulations
 Ex Parte McCardle
1.      Congress has authority to make exceptions to Supreme Court jurisdiction.
United States v. Klein
1.      Congress was trying to force a particular decision upon the court. In McCardle, the outcome was to prevent a particular decision.
2.      Congress cannot force a decision on the court.
Robertson v. Seattle Audobon Society
1.      Congress can affect the outcome of a case in the court as long as it is changing the underlying law and not the rules by which the court can decide
Plaut v. Spendthrift
            1. Congress cannot change the rules if it involves a final judgment
III.       Justiciability Doctrines
A.    Ban on advisory opinions
1.      Two provisions:
                                                                          i.      There must be an actual case or controversy
                                                                        ii.      There must be a strong probability that the court’s opinion will have some effect.        
2.      Reasons:
                                                                          i.      Prudential – staying out of potential embarrassing issues
                                                                        ii.      SOP – They do not want to interfere with how another branch of government functions
                                                                      iii.      Judicial – Preserve the court’s resources
                                                                      iv.      Giving legal advice without a very specific context could put the court in a very awkward position
1.      Elements:
                                                                          i.      Injury – concrete, legally cognizable, and personal (can be a prospective injury but must be imminent)
                                                                        ii.      Causation (traceability) – caused by the Δ’s conduct
                                                                      iii.      Redressability – redressable if the Π wins
                                                                      iv.      Ban on generalized grievances – statement that anybody can make
                                                                        v.      Ban on third party claims – Π cannot argue that someone else’s constitutional rights are being violated
2.      Allen v. Wright
                                                                          i.      Πs must show that they themselves have suffered a specific injury
                                                                        ii.      Government failing to enforce a law is not an injury
3.      City of Los Angeles v. Lyons
                                                                          i.      For injunction p

nt to another branch
                                                                        ii.      Are there judicially discoverable and manageable standards for resolving it?
                                                                      iii.      The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion
1.      Policy lies in the hands of Congress and the President
                                                                      iv.      Impossibility of a court’s undertaking independent resolution without expressing lack of respect to another branch
1.      Not a federalism question
                                                                        v.      Unusual need for unquestioning adherence to a political decision already made
                                                                      vi.      Potentiality of embarrassment from multifarious pronouncements by various departments on one question
3.      Vieth v. Jubelier
i. In Vieth, the issue is not whether the lines are unconstitutional but whether the court has jurisdiction to decide if the lines are constitutional. (Substantive question vs. Procedural Question)
                        4. Goldwater v. Carter
Case is a nonjusticiable political question
Dispute between two branches of government – let them deal with it
Court should play as narrow a role as possible
It is better for democracy to let Congress and the President decide
I.          Sources of Congressional Power
A. Scope of Congressional Power
a.      McCulloch v. Maryland establishes a two-part inquiry in order to determine Congressional power:
                                                              i.      Is there a source of Congressional power?
                                                            ii.      Does the Const. prohibit the Congressional power?
b.      McCulloch gave Congress power by establishing that the Constitution could not possibly list all power of Congress. Article 1 §8 (“Necessary and proper clause”) grants Congress broad unlimited powers
Putting these two concepts together, the court in McCulloch stated that it will leave it to Congress to decide whether an act is “necessary”. The only time the Court will get involved is if there is a violation of a constitutional prohibition