PART 1: THE ALLOCATION OF GOVERNMENTAL POWER: NATIONAL AND STATE
I. JUDICIAL REVIEW
a. ESTABLISHING JUDICIAL REVIEW
i. Judicial review: the doctrine that the cts have the pwr to invalidate governmental action that is repugnant to the Constitution.
1. Marbury v. Madison: Where the Constitution of the US, as interpreted by the SC, conflicts with the laws enacted by Congress, the SC may declare such laws unconstitutional and invalid. Rationale: (1) written C; (2) cts interpret law; (3) supremacy clause of Art. IV; (4) grant of jurisdiction in Art. III, so congress cannot expand original jurisdiction; (5) Judges oath to conform with C in Art. VI.
ii. Review of Federal Action
1. State and federal cts have the pwr to review and invalidate the acts of congress and the executive that are contrary to the Constitution.
2. Reviewing Acts of Congress. See Marbury v. Madison above.
3. Reviewing Executive Action
a. The federal judiciary is supreme in the interpretation of the Constitution. See US v. Nixon below.
iii. Review of State Action: The Supremacy Clause of Art. IV establishes that Constitution of the US binds state officials. When the state cts decide federal constitutional questions, the SC has appellate jurisdiction under Art. III §2, over such decisions. States need uniformity in federal constitutional interpretation.
1. Martin v. Hunter’s Lessee: The C permits the SC to exercise appellate jurisdiction over cases pending in state ct. Rationale: Art. III gives SC appellate jurisdiction in all cases arising under the C, laws and treaties of the US, other than those in which it has original jurisdiction. Art. IV’s supremacy clause: state is bound to C when there is a federal power delegated.
2. McCulloch v. Maryland: the states have no pwr to burden the operation of federal laws designed to execute pwrs vested in the federal gov’t by the C. Rationale: Ppl accepted fed gov’t when they ratified C. Congress makes laws that are necessary and proper, where necessary is interpreted broadly. The clause is placed in the pwrs section of congress and not limitations section. C and laws made pursuant to C are supreme and control state laws. The whole can act for the part but the part cannot act for the whole.
b. SOURCE OF JUDICIAL POWER: ART. III JURISDICTION
i. Federal “Judicial Power”: Art. III §2 defines the SMJ of the Art. III fed cts. Unless a case fills within one of these cases or controversies, the fed ct must dismiss the case for want of jurisdiction.
1. Art. III: The SC is the only federal ct specifically req’d by the C.
2. Congressional Control: Congress cannot authorize the Fed cts to take jurisdiction or perform functions beyond the limits of Art. III.
ii. SC Jurisdiction
1. Original jurisdiction: congress cannot extend original jurisdiction beyond those specified in Art III. See Marbury v. Madison above.
2. Appellate jurisdiction – Congressional Power to Confer and Withdraw: Congress must authorize the ct’s appellate jurisdiction, and congress may withdraw subjects from the ct’s appellate jurisdiction.
a. While Art. III §2 may be a grant of pwr to Congress to withdraw subjects from the SC’ appellate jurisdiction, congressional pwrs are subject to constitutional limitations.
b. Congressional statutes withdrawing SC review might also invade rights and liberties guaranteed in the C. Even withdrawal of a particular remedy might prevent judicial protection of a constitutional right and thus could be argued to violate that right.
i. Ex parte McCardle: Although appellate jurisdiction for the SC is not derived from acts of Congress, but from the Constitution, jurisdiction is nevertheless conferred with such exceptions and under such regulations as congress shall make. Rationale: Jurisdiction is the pwr to declare the law, and when it ceases to exist, the only function remaining to the ct is that of announcing that fact and dismissing the cause. There are no Constitutional constraints on congress’ pwr over the appellate jurisdiction of the SC.
iii. Discretionary review
1. Certiorari: Discretionary. Cert is granted when four justices vote to review the decision.
2. Basis for Review (not exhaustive list)
a. Ct conflict
b. Novel federal question
c. CONSTITUTIONAL AND POLICY LIMITATIONS ON JUDICIAL REVIEW
i. Constitutional Limitations
1. Case and Controversy as defined under Art. III
a. No Advisory Opinions: The fed cts may not furnish opinions on Constitutional matters in a friendly non-adversary proceeding even at the request of a coordinate branch
b. Declaratory Judgments: Fed cts are often requested to decide what legal consequences will apply to the conduct of litigants, rather than provide damages or injunctive relief. Such declaratory judgments are not advisory opinions if they are sufficiently concrete to provide a true controversy that the ct can decide.
d. SPECIFIC DOCTRINES LIMITING JUDICIAL REVIEW
i. The Standing Limitation – who can litigate?
1. Constitutional standing
a. General standards: Art. III case and controversy requires that the party seeking to litigate a constitutional question demonstrate such a personal stake in the outcome of a controversy to assure that concrete adverseness which sharpens the presentation of issues upon which the ct so largely depends for illumination of difficult constitutional questions. Baker v. Carr. A litigant has such a personal stake if he alleges (1) an injury in fact (2) fairly traceable to the D’s action being challenged; and (3) redressable by the judicial relief requested.
i. Injury in fact
1. Lujan v. Defenders of Wildlife: Injury in fact requires an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.
2. Sierra Club v. Morton: Harm to aesthetic, conservational and recreational values will suffice for injury in fact but there is still a requirement that person suing is personally harmed.
ii. Fairly traceable to D’s actions
1. Allen v. Wright: Rule: Standing requires a P to allege a personal injury fairly traceable to the D’s allegedly unlawful conduct and likely to be redressed by the requested relief. Rationale: Art. III limits fed jurisdiction to cases and controversies. Fed ct is not the proper forum for general complaints about the way the gov’t conducts its business.
iii. Redressable by the relief requested
1. Friends of the Earth v. Laidlaw: An environ’al org sued a company that had released discharges of toxic pollutants in excess of those allowed by its permits. The ct held that the Ps lacked standing b/c they couldn’t meet the redressability req’t.
iv. Alternatively “nexus” where the P must show:
1. allegedly unlawful conduct has caused his injury in fact AND
2. the injury is likely to be redressed by a favorable decision
a. Flast v. Cohen Involved a taxpayer challenge to aid to religious schools. The ct granted standing to the taxpayer b/c there was a logical nexus between the status asserted and the claim thought to be adjudicated. The nexus required the taxpayer to establish (1) a logical link between that status and the type of legislative enactment attacked and (2) must establish a nexus between that status and the precise nature of the constitutional infringement alleged. The ct held that the req’t was satisfied in the case of a taxpayer challenging an expenditure of public funds as violative of the establishment clause.
2. Prudential standing
a. No generalized grievances
b. No raising third party rights (generally)
i. Elk Grove Unified School District v. Newdow: It is improper for the federal cts to entertain a claim by P whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of P’s claim. Having been deprived under CA law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal ct. Rationale: Newdow had a cognizable right to influence his daughter’s religious upbringing that right had not been impaired by the school board’s actions, since the CA cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion.
c. Taxpayer can bring suit if case is focused on the deprivation of a constitutional right (e.g. first amendment challenge)
d. Within “zone” of interests protected by Constitution/statute
ii. The timing limitation – when can constitutional litigation be brought
1. Mootness: When a fed ct’s determination of a legal issue submitted by the parties is no longer necessary to compel the result originally sought because changes after the suit was brought, the case is said to be moot and fed cts are w/o the pwr to decide such an issue. Derives from the Art. III case or controversy req’t
a. E.g. DeFunis v. Odegaard: Involved a challenge to a preferential admissions program. The mootness depends upon the simple fact that DeFunis is now in the final quarter of his final year of his course of study.
b. Mootness exception: A constitutional issue will not be rendered moot when it is capable of repetition, yet evading review.
i. Roe v. Wade: Roe was no longer pregnant. The ct held that this was not moot based on the exception for cases that are capable of repetition yet evading review.
2. Ripeness: For a case to be ripe, there must be present injury, or an imminent threat of injury.
a. Laird v. Tatum: Class action was brought for injunctive relief against alleged surveillance of lawful citizen political activity by the US army and that Ps were chilled from engaging gin constitutionally protected activity. The ct said that the chilling effect was insufficient if it arose merely from the individual’s knowledge that a gov’t agency was engaged in certain activities or from the individual’s concomitant fear.
iii. Political Question Doctrine: political questions, which do not mean cases dealing with political subjects, are non-justiciable.
1. Political Question Indicators (from Baker v. Carr)
a. Textually demonstrable constitutional commitment to a coordinate political department.
i. Goldwater v. Carter US recognized the Rep of China as the legitimate gov’t but the PRC pressed the US to withdraw their support for ROC, including a mutual def treaty. The ct held that the issue presented was political and therefore nonjusticiable b/c it involves the authority of the President in conduct of our country’s foreign relations and the extent to which the senate or the congress is authorized to negate the action of the president.
b. Lack of judicially discoverable and manageable standards of decision. E.g. there is nothing in Constitution or CL..
c. Impossibility of deciding w/o making non-judicial policy determination
i. Davis v. Bandemer The SC was asked to determine whether the political partisan gerrymandering cases were justiciable. Racial gerrymandering is guided with strict scrutiny. Political gerrymandering will not be reviewed b/c they are political questions and lack manageable standard. However, this does not apply to the racial gerrymandering under the 14th amdt.
ii. Contrast INS v. Chadha The ct rejected a political question challenge to its pwr to consider the legality of the legislative veto. They stated that the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine.
d. Impossibility of deciding w/o expressing lack of the respect due coordinate branches of gov’t. Important for separation of pwrs.
i. Nixon v. United States: Judge Nixon, being impeached, challenged the method in which the senate had reviewed his impeachable offense. The statute allowed the senate to “try” the judge. Rule: The ct is not going to examine the discretion being used in instructing the procedure to hear the evidence that Judge Nixon wanted to bring before the senate. Rationale: Political question indicator that there was a demonstrable commitment in the C to coordinate different departments, w/senate having the pwr to try. “Try” had various meanings.
ii. Contrast Japan Whaling Association v. Baldridge (1986) The sec would not certify that Japan was in violation of the IWC quotas. The ct held that the sec’s decision did not violate the statutory mandate and that this was a purely legal question of statutory interpretation.
iii. Contrast Bush v. Gore: Once a state vests voting rights in its citizens, it must afford each person’s vote equal treatment under the Equal Protection Clause. Rationale: the right to vote is fundamental and no uniform standard was established to ensure the satisfaction of the equal protection clause.
e. Unusual need for unquestioning adherence to a political decision already made.
f. Potentiality of embarrassment from multifarious pronouncements from various branches.
i. Baker v. Carr: The Guaranty clause may not be used as a source of a C’al standard for invalidating state action, but an equal protection claim may be so used where it does not implicate a political question. Rationale: The fact that the suit seeks protection of a political right does not make it a political question. Does not fall into the political question indicators.
II. NATIONAL LEGISLATIVE POWERS
a. THE SCOPE OF NATIONAL LEGISLATIVE POWER
i. Express pwrs: Art. I §8 expressly grants a variety of pwrs to Congress including the pwrs to regulate commerce with foreign nations and among the several states and to law and collect taxes to pay the debts and provide for the defense and general welfare of the US. The enforcement pwrs of the 13th, 14th, and 15th amendments authorizing congress to enforce the guarantees of those amendments by appropriate legislation. Congress does not have a general police pwr.
ii. Implied pwrs:
1. Necessary and Proper clause: Art. I §8 also provides that congress shall have pwr to make all laws which shall be necessary and proper for carrying into execution the foregoing pwrs and all other pwrs vested by the Constitution in the gov’t of the US, or in any dept or officer thereof.
2. Interpretation of Necessary and Proper: The terms necessary and proper have been interpreted to mean that if the end for which congress legislates is legitimate, within the scope of the Constitution, then all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution are constitutional. Congress may use reasonable means for achieving its delegated powers. See McCulloch v. Maryland above.