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Constitutional Law I
West Virginia University School of Law
Bastress, Robert M.

Judicial Review
I.                   Marbury v. Madison
a.       3 questions must be answered
                                                              i.      Is there a right to commission = Yes b/c signed & sealed by pres and sec of state
                                                            ii.      Is there a remedy = There are some cases where USSC can review decisions by Executive
                                                          iii.      Can USSC issue a Mandamus = Unconst for the ct to issue a mandamus b/c not listed in the const under the USSC’s original jurisdiction
b.      Marshall Created out of Article III
c.       Marshall viewed Constitution as a ceiling giving the Ct maximum power below it
                                                              i.      Congress cant give USSC more jurisdiction declaring the Judicial Act Unconst
                                                            ii.      Says Judiciary is final step in reviewing legislative act
d.      Ct must decide if a law is valid or invalid before a case can be decided
                                                              i.      If law is Unconst, cant be enforced by judiciary
II.                Marshall had a broad view of the USSC power
a.       Gives Judiciary final say in all issues
b.      Only way for other branches to get around USSC is to amend the const
III.             Judiciary is not a majoritarian system
a.       Represents everyone, including the minority
b.      Guarantee const rights
c.       Justices have independence from the Populus
I.                   Political Questions
a.       Certain issues are outside the realm of the cts that they should stay out of
b.      Issues are best left for the legislature to decide
c.       Applies only to the three branches
II.                Political Question Doctrine
a.       Avoiding controversial Const questions
b.      Separation of powers
c.       Self interest (impeachment, amend process)
d.      Lack of Expertise (foreign affairs)
III.             There are 7 factors for determining a political question
a.       When one branch is granted a power in the text of the Const
b.      Lack of power to resolve an issue
IV.             Baker v. Carr
a.       Political questions only apply to the 3 branches of federal government and not to the state
b.      The issue of reapportionment in Tenn was a federalism issue and not a separation of powers therefore not a political question
V.                Powell v. McCormick
a.       The house shall decide all things in excluding its members in response
b.      The Ct circumvented the Const
c.       The Ct interprets around the Const sometimes
d.      Ct can read around the text
VI.             Nixon
a.       USSC wont get involved in the impeachment of its own members
b.      Const Says congress solely handles impeachment
c.       USSC can only be involved in the criminal part of the process
VII.          The USSC will never review the Executive or Legislative decisions on global issues (globally the nation should speak with one voice
VIII.       The USSC does not give advisory opinions
a.       An issues constitutionality will not be assessed unless it’s a case or a controversy
b.      This in distinguished from a Per Curium opinion where the Ct advises a lower Ct on the law
IX.             Standing = Certain requirements must be met before the USSC will hear a case
a.       2 categories
                                                              i.      Constitutional Restraints = Have to have harm, causation, and a remedy
                                                            ii.      Prudential Restraints = Informal, non-official restraints the ct has placed on its self (Warth v. Seldin)
1.      Plaintiff cannot rely on a 3rd party injury
2.      Generalized grievances = wont allow one person to represent everybody
3.      Zone of Interests = plaintiff must be a member of the group the law was designed to protect
b.      Congress can override prudential restraints
c.       Congress cannot override constitutional restraints
d.      Lujan v. Defenders of Wildlife
                                                              i.      P was not actually injured by D
                                                            ii.      Citizen suit provisions in environmental acts by Congress still require the elements of standing be met
                                                          iii.      Congress must identify injuries which allow a suit to be brought against the secretary
X.                Mootness = A case may not be heard if moot; it was “live” but in the ongoing process of litigation, etc. the party no longer has an interest
a.       A controversy must still exist at each part of the process
b.      Exceptions
                                                              i.      If the issue is capable of repetition but evading review (ex. Abortion)
                                                            ii.      Voluntary cessation by the D (voluntarily ceases the conduct that the plaintiff was complaining of and can show that the act will not happen again
                                                          iii.      Collateral consequences = somebody convicted criminally of a felony (ex: somebody being wrongfully convicted and sentenced, an who has served 10 years
XI.             Ripeness = Asking the Ct to rule before any actual harm has occurred (Hatch Act)
USSC Authority to Review State Ct Judgements
I.                   Martin v. Hunter (USSC authority to review state court decisions)
a.       Exceptions clause allows Congress to give USSC more appellate jurisdiction
                                                              i.      USSC has finality over state courts according to Judicial Act 1789
b.      Supremacy Clause gives Federal Government power over the states
                                                              i.      Uniformity = Justice Story says need uniformity of federal law which can only be guaranteed by USSC having final say on all federal issues to prevent misinterpretation

         Used by Congress more than any other power because it is the clearest, most distinct power
II.                Ogden
a.       Marshall defined interstate commerce as “Commercial Intercourse”
b.      Very vague interpretation that defined nothing
III.             E.C. Knight
a.       Production does not effect interstate commerce (indirect effect)
                                                              i.      Transportation directly effects I/C
b.      Cant use CC to affect state production laws
IV.             Shreveport
a.       TX made route to deliver in TX cheaper that to ship to LA
                                                              i.      Arent directly hurting LA
b.      Ct says still has a “Substantial effect” on LA so cant change the price
c.       Ct broadens the rule so not just transportation
V.                Swift
a.       Local taxes can effect the stream of commerce
b.      Fed govt cant effect intrastate commerce that effects interstate commerce
VI.             Up to this point the Ct has been creating economic tests
a.       Ct is applying the Nec & Prop to protect an enumerated power (Com Clause)
VII.          Punishment v. Prohibition
a.       Cant stop act before it effects commerce (indirect)
b.      Cant stop act after it effects commerce (indirect)
VIII.       Const Provisions/Control over I/C
a.       Channels
b.      Stream
c.       Substantial Effect
IX.             NLRB (1937)
a.       Ct becomes federalist and broadens the power of the federal government
b.      USSC abolished Direct/Indirect tests
c.       Substantial effect on Interstate Commerce is the only test the Ct keeps (Fed can regulate as long as substantially effects interstate commerce)
X.                Wickard
a.       Farmer growing own bushels effects commerce in the aggregate
                                                              i.      Limits were set on how much wheat could be sold
b.      By growing your own wheat, your not spending on the competitors wheat which has an aggregate effect on commerce
XI.             Darby
a.       Congress can control production as long as it has a substantial effect on commerce
b.      This overrules Hamer which prevented Congress from regulating child labor
c.       If Fed cant control wages & labor, then cant control competition among the states
XII.          After 1937, USSC has broadened the commerce power so that Congress can now regulate:
a.       Economic Activity
b.      Police