Con Law Outline- *Shortish

Con Law Outline- *SHORTish

1)Judicial Power

a)Judicial Review & Judicial Supremacy

i)Marbury v. Madison - Creates SC’s judic. review power; SC can strike down statute that undermines Con.

(1)Dead Hand Problem- We’re only bound to Const. to extent that we agree to be bound to its provisions, see it as legitimate, reflecting our enduring, shared values

(2)Broad of Marbury – what’s accepted today (Cooper – see below)

(a)SC decisions set precedent for all future, similarly situated parties under similar facts; not just binding on particular parties of given case under those partic. circumsts.

(b)SC decision becomes “law of the land” in same way text of Const. is “supreme law of the land.”

(c)Rationales:

(i)We want SC decisions to bind all of us b/c if Con. reflects fundamental nat’l principals, then SC interpretations of Con. should also reflect govt. principles.

(ii)Institutional - SC more well-suited than political branches to interpret constitution:

Expertise in interpreting law
(Theoretically) insulated from politics/dem. process; so SC well-suited to make broad pronouncements to protect minorities against majoritarian, dem. political branches

ii)Martin v. Hunter’s Lessee (1816)-

(1)Issue: Does SC havepower to review state ct. decisions?

(2)Ruless

(a)Art. III- delineates SC power – ““judic. power shall [reads as MUST] extend to all cases arising under fed. law”

(b)Jud. Act of 1789 §25- conferred on SC power to review decisions of highest state cts., if within limits (i) and (ii):

(i)SC only has app. jd. over highest state ct. decisions; AND

(ii)Party relying on fed. law will have had to lose in highest state ct.;

(3)App

(i)Martin claimed title to Fairfax’s land pursuant to Treaty of Paris; even though state law at issue (VA property law), Martin’s claim still had embedded fed. issue (Treaty)

(ii)Martin lost in highest VA ct;

(4)Concl:Yes. SC J.R. power includes appellate review of state ct. decisions/enactments.

iii)Cooper v. Aaron

(1)Facts - AR. School board tried to implement desegregation policy post-Brown. School Board thwarted b/c other AR State officials flouted Brown decision. Those anti-Brown officials argued AR Schools not bound by Brown holding b/c they were not parties to that partic. suit (narrow Marbury reading)

(2)Concl: Upholds BROAD, rejects narrowMarbury reading

(a)Brown is binding on everyone pursuant to our supreme interp. of 14th Amendment, regardless of whether they were parties to the initial case

(b)Broad view = predominate view today, even by political branches that do not like an SC decision. Challenges to SC decisions by political branches still happen within bounds of judicial system, not by attempting to invalidate or ignore SC decision

(c)HOWEVER, Cooper didn’t completely settle issue of who has final say on Con. meaning.

(3)Judicial Review abortion funding statute hypos-narrow/broad reading of Marbury implications

(a)Premise: SC strikes down anti-abortion funding statute; pres. doesn’t like decision, wants statute; (Bush v. Ohio Clinic)

(b)In response, spectrum from pres. public criticism of SC decision to pres. ordering Sec. of Health to ignore decision & uphold statute that SC struck down

(c)Whether or not pres. action const. depend on narrow vs. broad reading of Marbury

b)Threshold Qs: Can SC even decide the case? (Self-imposed) Doctrines Limiting SC’s Own J.R. Power

i)Political Q Doctrine

(1)Potentiallyapplicable for SoP Issues – when SC runs risk of encroaching upon Cong. or Exec.

(2)Marbury - SC can’t review “claims arising from the pres.’s legal or const. discretion to act” b/c those claims are just politically examinable – reviewed not by judiciary, but by political processes of election, etc.

(3)Baker v. Carr (1962)

(a)Issue-

(i)How to tell if issue is just “politically examinable” but NOT judicially examinable by j.r., such that SC can’t hear case?

(ii) Is issue ofwhether state’s apportionment/Cong. districting schemeviolates E.P. f citizens in densely populated areasby diluting their votes a non-justiciable political Q. (as TN leg. argues)?

(b)Concl: No.This issue is a NOTa political Q.Thus SC CANreview it.

(c)Baker, TN voter arg. :TN leg. had not redistricted since his Cong. district had become much more populous. This failure to redistrict to account for pop. changes diluted his vote, in violation of his 14th Amd. E.P. rights.

Baker Political Q. Factors: If answer is “yes” to these factors, then probably a non-justiciable political Q– SC can’t review
1.Is there [express/implied] textual commitment in Con. of this issue to another fed. branchother than judiciary? [* imp.]
Problems w/ this factor
Least determinant b/c Con. text often commits authority over an area to more than 1 branch, i.e. War power split between Cong. & Pres.
Even if there’s textual commitment in Con. to another branch totake a certain action, SC would still review that branch’s action if it reflected power abuse (See Nixon below).
2. Is there need to avoid disrespect to another branch of govt.?
3.Is there need for unquestioning adherence to preexisting decision by one of thepolitical branches (Congress or pres.)?
4.Is there some need for govt. to speak w/ one voice to avoid embarrassment?
5. Would resolution of the Q. call for policy decisions inappropriate for judicial resolution?
Frankfurter Dissent: Yes. This issue requires SC to determine what a vote should be worth. Resolving this issue of “competing theories of political philosophy” calls for policy decision, which SC not well-suited to make
6. Are there no obvious “judicially manageable standards” (meaning, clear Con. standards for SC to apply & make legal decision) . [* imp.] –
Maj: Here, E.P. cl. of 14th Amd. DOES have familiar judicially manageable standards for apportionment …but Brennan doesn’t define these standards
Prob. w/ this factor-Many important Con. provisions written in broad lang. that don’t incl. “judicially manageable standards” (ex. here, “equal protection”; “Due process”)

(i)[* Baker factors indeterminate….cut both ways]

(4)Powell –Applies “Textual Commit.” Baker factor

(a)Issue – Is issue ofwhether House could refuse to seat Judge Powell for reason other than not meeting age, citizenship, residency requirements of Art. I, § 2 (for ethics violation)a non-justiciable political Q?

(b)Concl: No. This question ISNOT a political Q. Thus, SC can review.

(c)Powell:Since Art. I § 5 = textual commit. of House to judge its own members’ qualifications, incl. those beyond Art. I § 2 residency/age/citizenship requirements (ethical qualifications), this issue a non-justiciable political Q.

(d)Analysis: Rejects Powell’sTextual commitmentto another branch arg.

(i)Con. says House of Congress “shall be judge of qualifics. of its own members pursuant to Art. I §5”) 

(ii)This section is NOT a textual commitment to the House of the power to decide whether a House member was ethically qualified to sit. Art. I § 5 “judge” section only refers to Art. I, § 2 residency, citizenship, age requirements for House members, which Powell had plainly satisfied.

(iii)Thus, Art. I, §5 “judge” section at most a “textually demonstrable commit. to Cong. to judge only the qualifications expressly set forth in Art. I § 2 (age, residency, citizenship)

(5)Nixon – “textual commit.” and “judic. manageable standards”Baker factors

Issue: Is issue of whether Senate must “try” fed. judge for impeachment as full body, NOT just as committee, a non-justic. political Q?
Concl:Yes.This is a non-justiciable political Q; ( SC won’t determine what constitutes “trial” – it’s up to Senate )
Facts- fed. dist. Judge Nixon impeached by House; Senate committee (not full Senate) tried him
Art. I: “Senate shall have sole power to try impeachments”
Analysis - Applying Baker factors-
textual commitment to another branch? Yes.
Art. I: says Senate shall have sole power to try impeachments (as opp. to fed judiciary.) - Senate has discretion
Souter concurrence stresses indeterminacy of “textual commitment” factor –
Despite majority’s concl. that there IS textual commitment to Senate for this issue (thus, no J.R.)….If Senate egregiously abuses its power over post-impeach. “trials” (ex. by flipping coin and then basing conviction on that), then despite textual commitment to Senate over impeach. “trials,” SC still would review Senate’s actions forabuse.
Souter saying that there should be max. deference to Cong. for determining what constitutes “trial”

lack of judicially manageable standards - no standard for how SC would review this issue b/c….
The word “try” in Art. I lacks suffic. precision to afford….such standards of SC J.R. of Senate’s post-impeachment trial procedures.
Rejects Nixon’s arg. - that Art. I use of “try” limited to federal dist. cts.; thus, SC review of Senate “trial” procedures is valid, b/c it’s like appeal of his “trial” in Senate
Textual commitment & judic manag. Standards factors related - Lack of judic. mang. Standards reinforces idea of textual commitment to the legislature (Senate) to handle this issue

ii)***Political Q. Doctrine, Principles***:

Arises in context ofSoPissues – When would one of the political branches be better suited than SC to resolve issue?
On spectrum from complete deference to other branches to no deference, P.Q. doctrine falls closer to complete def. side: [Complete def-.---PQ------ No def. ]
CLEAR ex. of non-justiciable P.Q. = pres. veto; SC won’t review, that’s clear P.Q.
CLEAR ex. of justiciable, non-P.Q. SC will review = Congress passes statute discriminating based on race in all fed. buildings
**Most P.Q. issues fall in the middle. S.C. usually leans towards deference
binary proposition: issue either….
justiciable / non-PQ; OR
non-justiciable PQ, so issue in province of Congress or Exec.
If Yes, PQ, then to what extent should SC defer to other branch?
BakerFACTORS CUT BOTH WAYS - indeterminate;
Nixon & Powell -different outcomes reflects indeterminacy of “textual commitment” factor-
both involve Con. provisions purportedly committing power to house of Congress, but w/o specifying extent of that house’s power to interpret limits of that power
Nixon: There WAS textual commitment to Congress (Senate) so Political Q, thus SC CANNOT review.
Powell: no textual commitment to Congress (House)So political Q, thus SC cannot review.
Con. never confers power exclusively on 1 branch, & then specifically says that that branch also has exclusive scope to interpret (limits) of that power
Hard to know if there’s Con. “textual commitment” when Con. splits power between 2 branches- ex. war power bet. Cong & Pres.
“lacks judicially manageable standards” factor
Many vague, but key Con. provisions – difficult to apply, that do arguably “lack judicially manageable standards” (“equal protection,” “due process,” “cruel & unusual punish.”) – but SC will still interpret.
“policy decision” factor- fact that case implicates policy decision doesn’t stop SC from making such decisions in cases all the time.
“disrespecting another branch” factor -- All SC exercises of J.R. by definition “disrespect” another branch’s action

Benefit to SC of fuzzy P.Q. test -Allows SC to dodge judicial review on P.Q. grounds, if J.R. would yield a very unpopular decision in very politically contentious context. Thus, enables SC to preserve public legitimacy in context of contentious issues

iii)Standing Doctrine – When is party eligible to bring suit to SC?

Elements in Art. III -Con. minimum to est. standing, that must be satisfied for SC to consider case on the merits.

(1)Injury in fact, that’s….
A.Concrete* & particularized**; AND
*NOT merely speculative
**NOT merely generalized, “stigmatic” injury (Allen)
B.Actual or imminent (not conjecture)

(2)Causal relationship….
A. …that’s traceable to challenged alleged conduct by D
B.injury must be redressible (fixable) by remedy sought

[ (3) SoP - Would granting this P standingmake SChave to continually monitor soundness of Exec. policy in violation of SoP principles? (Allen) ]

Rationales for limitations on “harm” for standing –
Separation of powers–( PRIMARY concern, Allen): must be limits for when SC should redress concerns for party who doesn’t like other branches’ “bad job” - SC can’t be continuing monitor of other branches’ decisions
Judicial efficiency - Allowing intangible injuries would expand class of potential Ps
SC must limit potential Ps to those w/ true stake in the outcome– such parties have incentive to litig. effectively; otherwise issues & facts won’t be fully fleshed out enough for SC to make solid judgment on the issue
Institutional logic- Generalized grievances (affecting large # of people)best left to the political branches – can be voiced /redressed more effectively

Allen – applies Standing Elements
Claim 1 –Do Ps have standing to vindicate claim that IRS had duty to revoke tax exempt status of “white flight” schools, which it breached, and seek requested relief: making IRS discharge its duty to revoke schools’ tax-exempt status ?
Concl: No.
Analysis: this fails Injury-in-fact. prong b/c…
It’s not enough that claimed injury is govt.’s “not doing its job”
“Stigmatic/[generalized] injury” not enough- i.e. Allen Ps: “Although I’m not personallyinjured b/c I’m not trying to send my kids to white flight schools/my kids aren’t getting discriminated against, that people like me are getting discriminated against stigmatizes people like me”

Claim 2 –Do Ps have standing to vindicate their kids’ right tohave a racially integrated pub. school edu.(which IRS is undermining by not revoking tax-exempt status of“white flight” schools?)
Concl: No.
Analysis:
(1) While this IS leg. cog. injury…
(2) Failscausation / traceability sub-prong – causal connection between IRS contd.subsidies to white flight schools & this injury attenuated at best
Stresses SoPstanding concerns*- Ps insisting that fed. cts. should continually monitors soundness of Exec. policy (Here, IRS)….such a role is more appropriate for Congress
Dissent: Yes.
Econ. analysis –Causation prong IS satisfied.
SC forcing IRS to remove white flight school tax-exempt status tuition at those schools goes up  some private school parents will withdraw kids & put them into pub. Schools integration of pub. schools

Hypo- Had SC ruled on the merits in Allan & revoked white flight schools’ tax exempt status, & then had white flight schools sued govt. claiming IRS applying tax code too strictly….

1. Injury-in-fact?–Yes. lost $ from enrollment decline from tuition incr.
2. Causal relationship?
A. That’s fairly traceable to D’s (here, govt.’s) actions?
Yes; IRS revoking tax-exempt status directly causally traceable to schools’ lost $ from enrollment decline due to necc. tuition increases
3. SoPAllen rationale against SC intervention?(Would giving these Ps standing require SC tobe“monitor of wisdom of govt policy?”_
Yes.
However, SC willing to monitorexec. action all the time when it doesn’t think exec. agencies should regulate in certain area.
Concl – Unlike Allen Ps, private school would have easier time est. standing necc. to get judic. review of govt. actions. – Easier for big, regulated institutions to show harm AND causal link between govt. action and harm
Allen Implications
Shows how SC is more willing to entertain suits challenging over-reg. (by large institutions) than it is to entertain suits challenging under-reg. (ex. by Allen Ps)
Shows SC’s default, libertarian view that govt. should minimize regulation of private parties by making it harder for Ps seeking relief of more regulation to est. standing, and conversely, making it easier for large institutions requesting less regulation to est. standing

(1)Bakke – app. of Allen test

Principle: ** Shows how “harm” Allen standing element can be manipulated to satisfy Causation prong **
(Alleged)Harm?
Smith framing - Denial of admission & Implied financial conseq.
SC: “lost opportunity [chance, %- as opp. to guaranteed admiss.] to compete fairly for all 100 slots”

Causation – Is challenged govt. conduct traceable to P’s injury?
Under Smith harm: No - Even w/ no affirm. action policy, Bakke wouldn’t have been admitted anyway b/c he was not more qualified than the “many …other white applicants who had been denied w/ better credentials than Bakke”
SC: Yes; govt. affirm. action policy traceable to P’s injury of lost chance, % , as opp. to guaranteed admission

iv)No advisory opinions

(1)Con. does not allow SC to answer abstract legal Qs, even if asked to by pres. or his advisors

(2)Muskrat v. United States (1911):

(a)Statute at issue – conferred jd. on fed. cts. to determine whether statutes that diminished persons’ claims to property were constitutional

(b)Concl – Statute invalid. Cong. can’t confer jurisdiction on fed. ct.s to decide abstract legal Qs in suits that lack litigants w/ the requisite adversity of interests. Art. III cts. only have jd. over “cases” or “controversises”

(3)Why not?

Textual – SC can only hear “cases or controversies” (Art. III)
Notice - SC’s answers to Legal Qs not helpful if they’re abstract – laws meaningless until applied to set of facts. SC decisions ltd. to actual “cases or controversies” gives public notice about what law concretely meansin context
Adversarial presentation of legal Qs to SC means litigants have stake in the outcome of the case; Since they have stake, they have incentive to bring to the court all of the relevant facts & best legal args. on controversy at hand so SC can make best decision on the merits it can
Advisory opinions would undermine SC legitimacy as neutral entity, b/c if it opines for Congress or pres. on const. of given law, will make public perceive SC as endorsing/helping which ever branch it’s advising
Sep. of powers– need to limit profound power of (inherently undemocratic ) J.R.; no broad pronouncements

v)Timing Doctrines- When can SC hear case?

(1)Ripeness Doctrine- Sets limit for bringing case too early (“green banana”)

Text: Art. III cts. only have jd. over “actual cases or controversies”
SC won’t consider claims “not yet ripe” – that haven’t developed into actual controversies in which party has stake yet
Ex.
Congress introduces statute regulating investment banking industry; Congress just considering it, but hasn’t yet enacted law…
Bankscan’t sue yet challenging statute at this point,for fear of anticipated, not-yet-enacted legislation, just b/c they’re worried people won’t invest in their shares if the law does pass.

(2)Mootness Doctrine– Sets limit for bringing case too late (“brown banana”)

Art. III cts. only have jd. over “actual cases or controversies”
SC won’t hear claim in which party no longer has any concrete stake.
Ex.
Govt detains me unlawfully; if I file writ of hab. corp. for relief of release. Later, govt. releases me.
SC then must dismiss writ of habeus corpus as moot.
Doesn’t matter if I just want to know whether what govt. did was unlawful or not. If outcome of case has no actual effect in real world – not enough for SC to hear the case.

Exceptions Power

c)Can Cong. prevent just SC from exercising jd over certain types of cases?