Winter 2010
Rothchild
Con Law
I. Overview and Judicial Review:
a. Marbury v. Madison
i. Basis of the idea of Judicial Review: (p1) Marshall simply allows logic to flow, legis writes exec enforces and judic must interpret. To apply the law to case one must first “expound and interpret.” If two laws conflict, the court must decide which is right. To find something unconstitutional is to say that the law in question conflicts with another (const.) law and that the const. law is proper.
1. in some ways s.court works to make sure const. remains the highest law of the land.
ii. Other issues:
1. remedy by law is available only in conflicts of law, not mere political issues. Execution of the pres. Will via an agent is not examinable. Duty assigned by law is.
2. From Jurisdiction all power of a court flows.
b. Cooper v. Aaron (p9)
i. A challenge to federal superiority via court orders (brown v. board of education), and a completely impossible one.
ii. Article VI “supreme law of land” as Marbury says
iii. S.court in brown says Amendment 14 trumps powers of state used to keep minorities out of schools. STFU whiny racist bigot southerners.
c. Martin v. Hunter’s Lessee (p14)
i. Issue of federal review of state decisions.
ii. Basis in Judiciary Act of 1789 § 25
iii. An English lord, original land owner, grants land to his son. Between grant and acceptance, state of Virginia creates law providing forfeiture of prop belonging to English subjects. (1779) 1783 federal treaty says no future confiscations. 1785 Hunter makes claim on the land.
1. back and forth, goes to supreme 2x (1st state ct. refuses to follow mandamus issued as claim of no superiority.
iv. NO. Federal treaty trumps state law!
v. A valid appellate jurisdiction, a state/federal law coonflict
vi. Not a means of removing independence of State judges!
d. Ex Parte McCardle
i. Congress can restrict appellate powers of the court!
II. Doctrine of Implied Powers:
a. M’Culloch v. Maryland
i. Maryland creates a law requiring all banks not chartered in state with branches in MD to pay a tax. The US congress incorporates a federal bank with a branch there and does not pay the tax.
ii. Incorporation unconst.?
1. no. Necessary and proper clause in Art 1 § 10
a. A power need not be explicitly and specifically listed to be exercised.
b. Rather than iteration of power to create laws/absolutely necessary for enumerated powers.
III. Justiciability (the quality of being worthy/proper for trial)
a. Advisory opinions
i. Muskrat v. US (p38)
1. Abilities and tasks NOT judicial cannot be assigned to the courts
a. Limited to cases and controversies. Pure question of constitutionality is invalid.
ii. Thus, Advisory opinions NOT allowed. (see Bush v. Gore for blatant violation of this)
b. Political Questions
i. Baker v. Carr (p46)
1. TN failed to reapportion federal districts.
a. As a result, debasement of votes.
2. Not an Art. IV § 4 “republic gauranty”
3. Again, not allowed. Political cases are allowed, but political questions lack a case and controversy.
•A “textually demonstrable constitutional commitment of the issue to a coordinate political branch.”
•A “lack of judicially discoverable standards.”
•The “impossibility for a court independent resolution without expressing a lack of respect for a coordinate branch of the government.”
•The “impossibility of deciding the issue without an initial policy decision, which is beyond the discretion of the court.”
•An “unusual need for unquestioning adherence to a political decision.”
•The “potential embarrassment of various departments” of the government.
ii. Powell v. McCormack (p50 ish)
1. A Member of the 90th congress was excluded under Art I §5 cl 1&2 punish members.
2. court effectively handed ? if expel = exclude.
a. court says a const. interpretation is a genuine controversy and is not a political ?
iii. Nixon v. US (p62)
1. Judicial review of impeachment is unconst., thus, a political ?
2. additionally Impeachment clause “senate has sole power to try” does not entail any limit to how such “trying” would occur.
iv. Goldwater v. Carter (p353)
1. Pres. Carter terminated a treaty without authorization of congress. Congress members sue.
2. Const. does not speak to termination of treaty, as such not a “const impasse”
3. Court has no power to decide allocation of power between co-equal branches of Gov’t., a political ?
c. Ripeness
i. Int’l Longshoremen’s and Warehousemen’s Union, Local 37 v. Boyd (p1431)
1. attempt to obtain court’s assurance that a statute will not apply to a possible hypothetical situation in the future.
a. A real issue that has not occurred yet, not a “ripe” controversy.
ii. Controversy must have occurred, not simply be able to occur, to be justicable.
d. Mootness
i. DeFunis v. Odegaard (p1435)
1. Black student being denied enrolment, previous decisions allow him to attend U of Wash. Law.
2. By the time controversy reaches S.ct, he has finished school, and since a personal rather than a class action, decision is moot.
ii. The result must “touch the legal relations of parties having adverse int
is does not DEPRIVE the states of that power. 2 forms, essentially:
1. “those requiring a single, uniform rule operating equally on commerce in every port.”
2. Some, demanding diversity as best met by local necessity (say a specific reef which must be navigated around in port entrance)
ii. Congress, in essence, reserves the right to legislate at a later date (and an adoption of state laws in 1789 shows) and in silence has allowed states to handle such.
d. Transportation
i. There’s a local/national tension here as well.
ii. South Carolina State Hwy Dept. v. Barnwell Bros.
1. South Carolina has enacted limitations on truck size and weight, motivated by their hwy construction, lower than the rest of the country.
a. Fines imposed on violation
2. P. claims violates commerce clause (unfair obstacle to inter-state)
3. NO. regulations motivated by the specific and local problems of the state. Until congress says otherwise, ok.
iii. Southern Pacific Co. v. Arizona (p101)
1. Arizona sets (largely arbitrary) limitations on train lengths in state.
2. necessitates train re configuration on each side of state.
a. 85% of train traffic inter-state
3. extends far beyond borders, not easy to change at nearest yard.
4. Safety needs do not outweigh damage to commerce, not const.
e. Congress can legislate (consent) to state laws (pass Nat’l law authorizing state practice) usually when court rules against OR
f. Preempt laws by passing legislation that overrules state law (usually when courts find with law)
g. Incoming Commerce
i. Baldwin v. GAF Seelig (p107)
1. Law established that sets a minimum price from out of state milk.
2. Milk bought out of state from elsewhere (here Vermont) can’t be sold as it was sold below minimum.
a. Must be sold in Vermont at NY prices to be used there.
3. Essentially a customs duty/over extension of state power.
4. Original package test fails here.
5. Not const.
ii. Henneford v. Silas Mason (p111)
1. Washington places a use AND sales Tax of 2% on all property used/sold in the state. It may only collect up to 2% of the price of the item total from either source.
2. Therefore items sold in WA and items imported to it after sale feature the same tax.
a. Tax paid outside the state, if
