Constitutional Law Overview
I. Introduction - What are the basic principles underlying Constitutional law?
Limited government
Separation of powers
Checks and balances
Division of powers between federal & State governments
Protection of individual rights
II. What powers does the judicial branch of government have?
Judicial review - can a court rule that an Act of Congress violates the Constitution?
Jurisdiction - what kind of cases can federal courts decide?
Standing - who can sue in federal courts?
III. What powers does the legislative branch of government have?
What kind of powers does the legislature have?
How does Congress exercise its power to regulate commerce between the States?
IV. What powers does the executive branch of government have?
Appointment of officials
Foreign affairs/Treaties/War powers
V. What rules govern relations between the federal and State governments?
Are there limits to the federal government’s authority to pass laws that apply to the States?
Are there restrictions on State laws that affect other States?
VI. What individual rights does the Constitution protect?
Freedom of speech
Freedom of religion
Due process of law
Equal protection of the laws
Privacy
Constitutional Law Outline
I. Introduction - Principles Underlying U.S. Constitutional Law
Constitution - 1789; Amendments 1 - 10 (Bill of Rights) - 1791; 14th Amendment - 1868
A. Limited government - The federal government has only those powers expressly granted in the Constitution. It does not have general inherent powers.
B. Separation of Powers - The three separate branches and the bicameral legislature have different powers. One branch of government may not usurp or intrude upon powers granted to another branch.
C. Checks and Balances - The three branches share some powers, placing a check on the other branches’ actions; e.g. the President may veto legislation passed by Congress, Congress must advise and consent on treaties entered into by President and on Presidential nominations to certain positions (cabinet secretaries, federal judges, etc.), and Congress may declare war but the President is Commander in Chief of the Military.
D. Division of Federal/State Powers - Federalism
Any powers that are not given to the federal government are left to States or to the people (10th Amendment); States have general police power to protect the public health, safety and welfare, but the federal government does not; however, where there is federal law, federal law controls under the Supremacy Clause (Article VI, cl. 2). Therefore, State courts are bound to follow federal law, where it applies.
E. Individual Rights - The protection of individual rights against government actions also limits the government’s powers.
II. Judicial Power - Article III
A. Power of Judicial Review
Courts have the power to strike down or invalidate government action that violates the Constitution, because it is the Supreme Court’s job to interpret the Constitution.
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. ... So if a law be in opposition to the constitution; ... the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.” Marbury v. Madison, 5 U.S. 137 (1803). The power of judicial review extends to review of Congressional statutes, executive actions, state statutes and acts of state officials.
B. Structure and Scope of Jurisdiction of Federal Courts
1. The Supreme Court and other courts established by Congress
The federal judicial system includes the Supreme Court and lower courts created by Congress. Those lower courts include U.S. District Courts, U.S. Courts of Appeals for the various circuits, and some specialized courts, such as bankruptcy courts.
The Supreme Court has very limited original jurisdiction -e.g. cases affecting ambassadors, cases between States; cases generally arise on appeal, usually by writ of certiorari (discretionary grant of review) from federal courts and State courts.
2. Types of cases within federal jurisdiction
Federal courts do not have the authority to hear all types of cases - only those listed in the Constitution. They have authority to hear the following kind of cases:
a. Federal Question Jurisdiction - Federal courts can hear cases arising under the Constitution, laws and treaties of the United States - in other words, cases involving federal law.
b. Diversity Jurisdiction - Federal courts can hear cases between citizens of two different States.
C. Constitutional Limitations on Exercise of Judicial Power
1. Case and Controversy - There must be a concrete dispute between the parties, such that the parties have a personal stake in the outcome. This ensures that the parties will strongly present each side and therefore helps the Court to define the issue.
No Advisory Opinions - The Court cannot simply give its opinion on an issue when there is no actual dispute between the parties.
2. Eleventh Amendment - Federal courts do not have jurisdiction over cases against States or State agencies because States have sovereign immunity - unless:
Waiver - The State expressly gives up (waives) its sovereign immunity.
Abrogation by Congress: Congress may remove a State’s immunity, but must use “unmistakably clear” language declaring its intent to take away the immunity, and Congress must act pursuant to a proper Congressional power.
Exceptions:
The Eleventh Amendment does not bar suits against State officials to prevent ongoing violations of federal law (not State law). Thus, courts can grant prospective injunctive relief.
The Eleventh Amendment does not bar suits for money damages against State officials who are sued personally - i.e. when the official is sued in her individual capacity.
The 11th Amendment does not give immunity to local (city, county) governments.
D. Specific Doctrines Limiting Judicial Power
1. Standing - Who Can Sue?
Some standing requirements are mandatory and some are discretionary.
a. Constitutional Standing - To have standing, a plaintiff must have been personally injured by something the defendant did; this is derived from the “case and controversy” requirement.
To have standing, a plaintiff must satisfy a three part test:
1) Injury in fact - A plaintiff must be injured in a specific, real way. He must have suffered “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
2) Causation - the injury must be fairly traceable to defendant.
The plaintiff’s injury must be caused directly by the defendant’s action - the connection between the defendant’s act and the plaintiff’s injury cannot be too remote or indirect.
3) Redressability - It must be likely, not only speculative, that the injury will be fixed (or “redressed”) by a ruling in the plaintiff’s favor. In other words, the ruling must really be able to provide a remedy to the plaintiff.
b. Prudential (Discretionary) Limits on Standing
1. Third Party Standing - Generally one may not sue to enforce another person’s rights.
Exceptions: A third party may sue:
a) when it is difficult for the party to assert his/her own rights, or
b) where there is a special relationship between the parties (e.g. doctor/patient).
See Singleton v. Wulff, 428 U.S. 106 (1976); Warth v. Seldin, 422 U.S. 490 (1975).
2. Associational Standing
An association or organization may assert the rights of its members if:
a) the members would otherwise have standing in their own right (i.e. the members have an injury in fact),
b) the injury or interest sought to be protected is related to the organization’s purpose, and
c) participation by the individual members is not required under the circumstances.
c. Citizen Standing
Citizens generally have no standing to challenge government action or policies, if they have only a general disagreement with the action or policy that any citizen could have, and are not personally injured by the action or policy.
d. Taxpayer Standing
Taxpayers usually have no standing to challenge government spending, but taxpayers may sue if 1) they are challenging the exercise of the taxing and spending power, and 2) the enactment violates a specific Constitutional limit, which is generally limited to the establishment of religion. For example, a taxpayer could sue to challenge spending tax money to aid religious schools.
e. Congressional grant of standing - Congress may grant standing to enforce statutes which it enacts, and may eliminate discretionary limits on standing; but Congress may not eliminate the Constitutional requirements for standing, such as the injury in fact requirement.
Mootness and Ripeness: The case can’t be brought too late or too soon.
2. Mootness - The case is moot if the matter has been resolved or if, due to changes in circumstances, a ruling will have no effect. In such cases, the court lacks jurisdiction. Examples: if the challenged law has been repealed; if the plaintiff no longer lives in the State or City and is no longer subject to its laws; or if a prisoner brings a habeas corpus petition and is later released from prison, the case is moot.
Exceptions to the mootness doctrine are:
When the issue is “capable of repetition, but evading review” a case is not moot. This happens when the issue will likely always become moot before a decision is made, and therefore it could never be decided. For example, a pregnant woman’s challenge to an abortion law is not moot just because she had the baby, since such cases are not likely to be resolved in nine months.
Voluntary cessation - If the defendant voluntarily stops the conduct, but it is reasonably likely that he could repeat the conduct in the future, the case is not moot.
3. Ripeness - For a case to be ripe, there must be a present injury or an imminent threat of injury; the court will not decide an issue prematurely. A person may not challenge a statute if the statute has not yet been enforced and there is no real possibility it will be enforced against him.
In deciding if a case is ripe, the court will look at these factors:
a) whether delayed review would cause hardship to plaintiff,
b) whether a court hearing the case would improperly interfere with administrative agency action (e.g. if there is a hearing pending in an agency),
c) whether the courts would benefit from further factual development of the issues, and should therefore wait for such further facts.
4. Political Questions - Baker v. Carr, 369 U.S. 186 (1962); Federal courts will not decide cases if:
a. the issue is Constitutionally committed to another branch of government,
b. the issue is inherently incapable of judicial resolution - e.g. the court lacks the resources or capability of resolving the issue.
For example, courts will not decide cases involving foreign affairs issues, or the procedures and standards used in impeachment proceedings (because the Senate has “sole” power of impeachment).
This does not mean the Court cannot hear any cases involving elections or politics!
5. Abstention - Federal courts will abstain from deciding cases under various circumstances, due to respect owed to the States (comity):
Federal courts will not decide unsettled questions of State law. This is called Pullman abstention.
Federal courts will not decide cases when there are pending State proceedings taking place. This is called Younger abstention. Federal courts will not enjoin ongoing state criminal proceedings or, in some cases, civil or administrative proceedings, absent a showing of bad faith or harassment.
6. Judicial Restraint/Strict Necessity
The Court will not decide a Constitutional issue if another non-Constitutional issue will resolve the case; Constitutional issues are decided only when necessary.
If a statute is capable of a narrow interpretation that renders it Constitutional, the Court will generally give that interpretation to the statute, if it is reasonable.
The Court will generally not determine a Constitutional issue in broader terms than are required by the precise facts in the case before it.
III. Legislative Powers - Article I
A. Scope of Powers
1. Express and Implied (Necessary and Proper) Powers
Congress has only those powers expressly granted to it in the Constitution, and those implied powers that are “necessary and proper” to carry out the express powers - those powers reasonably designed to achieve a proper purpose under one of its express powers. This “necessary and proper” power is interpreted broadly.
“But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution are constitutional.” - McCulloch v. Maryland, 17 U.S. 316 (1819) (the power to incorporate a national bank, although not expressly granted in the Constitution, is a legitimate way to put into effect Congress’s express fiscal powers).
2. Congress Has No Inherent General Powers
Congress has no power to legislate in the domestic arena for the
General health, welfare and safety; there is no federal “police power,” as States have.
3. Delegation of Powers
Congress can delegate its legislative authority (e.g. to executive branch administrative agencies), so long as it sets the basic legislative policy and establishes reasonable standards for the use of the power.
B. Commerce Power
Congress has the power to regulate “commerce among the States” - i.e. interstate commerce. Congress may regulate even purely intrastate activity if there is a rational basis to conclude that the activity could have a substantial effect on interstate commerce.
Congress may consider the total effect of (add up, or “aggregate”) all the activities regulated. E.g., one farmer’s products grown for himself may not substantially impact commerce, but the cumulative effect of all farmers’ products on commerce would be large. Wickard v. Filburn, 317 U.S. 111 (1942).