CONSTITUTIONAL

LAW

Mary Cheh

SPRING 2010

JUDICIAL POWERS

“We are not final because we infallible; we are infallible because we are final” –Justice Jackson

THE POWER OF JUDICIAL REVIEW

  • Power of judicial review
  • Power of the courts to declare acts of government as unconstitutional (void or invalid) according to the Court’s interpretation of what the constitution means and requires (Marbury v. Madison)
  • If courts says act is unconstitutional, then act has no force or effect unless constitution amended or court later changes mind; ordinary legislation, acts of executive cannot change this
  • Source of judicial power
  • Text
  • History surrounding adoption of text
  • Structure
  • Core purposes underlying provision
  • Judicial precedent if available
  • Establishing the power of judicial review
  • No direct reference in constitution to power of judicial review
  • Some historical evidence that framers anticipated judicial review, but not conclusive
  • Marbury v. Madison establishes strong form of judicial review relied on two fundamental provisions:
  • (1) Nature of the constitution itself: constitution is fundamental binding law; superior to and prevails over ordinary legislation and governments acts
  • Written constitution meant to bind all actors as to its requirements
  • (2) The constitution is a species of law and under the constitution, it is the province and duty of the federal courts, and ultimately the Supreme Court, to say what the law is, including what the constitution is and what it requires.
  • Article III of constitution didn’t permit original jurisdiction; conflict between judiciary Act and requirements of Article III; Congress cannot by mere legislation give Supreme Court original jurisdiction where Constitution doesn’t permit; therefore legislation invalid
  • Cooper v. Aaron
  • Supreme Court sweepingly pronounces that federal judiciary is supreme, procedurally and substantively
  • Martin v. Hunter’s Lessee
  • When state court decides a case involving matter of federal law, the federal courts and the Supreme Court say whether the federal question was decided correctly or not.
  • Cited three reasons for this judicial review over state court judgments:
  • (1) Strong textual argument: since state courts are allowed to hear and decide federal claims, and since Article III gives Supreme Court jurisdiction over all claims arising under federal law, then by definition the S Ct can decide all federal and Constitutional issues no matter where they come from.
  • (2) History of constitution: contemporaneous understanding of what constitution means; the very people who were around during the adoption of the constitution thought there was such review authority
  • (3) Policy argument: uniformity of federal law and particularly constitutional law; states are only sovereign within the framework of the constitution

LIMITATIONS ON JUDICIAL REVIEW

  • Differing views about how the court should go about deciding constitutional cases and exercising judicial review:
  • Activist/ expansive approach
  • (1) S Ct insulated from politics (lifetime tenure)
  • (2) Justices well suited to interpret constitution
  • (3) Ct is least dangerous branch; has no money like Congress or army like executive
  • Restrained approach
  • Believe there are problems with exercise of judicial review, should be used only when necessary, and courts should only decide cases as narrowly as possible
  • Insulation of judges is liability, not a plus b/c they are appointed, not elected
  • Better if most judgments be made by legislature through democratic majorities
  • Court is countermajoritarian; if court strikes down legislation that was wanted by people, it is thwarting war of people unless it is undoubtedly at odds with constitution
  • Court should only intervene if mistake is clear
  • Diminishes democracy in general not direct involvement of the people
  • Limitations on when federal courts can act
  • Self-restraint (prudential matters)
  • (1) Constitutional issue will not be decided before it is necessary to do so, and then only as narrowly as possible.
  • (2) If a case raising constitutional issues can be disposed of on a non-constitutional ground, this will be preferred.
  • (3) If possible, statutes should be construed in a way to avoid constitutional issues.
  • If there are two ways of interpreting an issue, only one of which raises a constitutional issue, the Court will avoid the interpretation that avoids the Constitutional issue.
  • Constitutional limits- Article III
  • (1) Limited jurisdiction
  • Federal question
  • Diversity
  • Admiralty, maritime, ambassadors, when US or state is a party, etc.
  • (2) Congressional limitation on judicial powers
  • Exceptions Clause
  • (3) Justiciability- “cases and controversies”
  • Standing
  • Timing
  • Mootness
  • Ripeness
  • Questions the Court won’t answer
  • Political questions
  • Abstract questions
  • Abstract questions

JURISDICTIONAL LIMITS ON JUDICIAL POWERS- 11th AMENDMENT

  • Court must have subject matter jurisdiction (federal question, diversity)
  • 11th Amendment is immunity from states being sued in federal courts
  • Even though 11th amendment only mentions federal courts, it was implicit in sovereign immunity to include state courts
  • Does not include towns, cities, municipalities
  • 11th Amendment expressly says states may not be sued by citizens of another state
  • Hans v. Louisiana extends saying states may not be sued by their own citizens
  • Ways around the 11th Amendment bar:
  • (1) State may consent to being sued (often federal grants attached)
  • (2) Sue state officer in his or her professional capacity
  • Even if state will indemnify the officer
  • (3) Federal government can sue a state
  • (4) Congress creates cause of action under 14th Amendment
  • If statute passed under Article I, 11th Amendment is a bar. But if cause of action created in 14th Amendment, 11th Amendment not a bar b/c it qualifies the 11thAmendment.

CONGRESSIONAL LIMITATIONS ON JUDICIAL POWERS

  • Article III
  • Unless Congress has affirmatively by statute confers subject of jurisdiction by Article III, federal courts won’t have the jurisdiction
  • Ex: diversity jurisdiction requires amount in controversy $74K
  • No power to abolish the Supreme Court b/c Article III says has to be S Ct
  • No power to alter, add, or subtract from original jurisdiction of the S Ct b/c this is specifically conferred by Article III (ambassadors, cases in which states party, classic- two states fighting)
  • Exceptions Clause
  • Art III says S Ct has appellate jurisdiction for all the ones set out in Article III (diversity, admiralty, etc.) BUT with such exceptions that the Congress shall make
  • Ex Parte McCardle: issue of how far Congress can go with Exceptions Power; Court upheld Congress’ repeal of statute’s jurisdiction; exceptions power is broad to cut back on appellate jurisdiction of the Supreme Court
  • Limits on Exceptions Power
  • Individual liberties
  • Congress may not violate individual liberties
  • Separation of Powers
  • Has to be neutral withdraw of class of cases
  • Special Function theory: Congress may not interfere with fundamental role of Court to decide constitutional questions in such a way that it would in essence take away the “special function” of the Supreme Court

JUSTICIABILITY

Article III says the Court may only hear“cases and controversies”. There must be a“real fight and legal claim between adverse parties where resolution by a court is appropriate.”

STANDING (plaintiff must have sufficient stake or claim)

(1)INJURY

  • Some direct and personal harm that is actual and concrete and legally cognizable injury in fact
  • Cannot be harm to someone else, harm in general, generalized grievance
  • Sierra Club v. Morton:
  • club denied standing b/c it didn’t say how it or any of its members would be affected by the building of a recreational facility on federal lands; didn’t say they hiked or watched birds in area or they were personally affected in any way; ideological or caring about issues is not enough
  • United States v. SCRAP:
  • Ps added in allegations that the area of the environment that would be degraded by what the government was doing was there they hiked and breathed the air- they connected themselves to the harms they identified and alleged they personally suffered the harms
  • Raines v. Bird:
  • Legislators may not challenge a law properly enacted which he or she simply thinks is unconstitutionalif they weren’t personally harmed, but if they were denied right to vote as a legislature, then they have an injury.
  • Statutory Standing
  • Standing satisfied when Congress has given them some right under a statute and that right has been harmed.
  • Ex: Congress passes statute saying banks must provide receipts for all transactions, and any person may sue for $1,000 if there was a violation. You go to bank, but don’t get receipt. Before Congress passed statute, you have no cause of action. But now, b/c Congress has passed statute, it has created interest in you and you now have a cause of action.
  • Limits:
  • (1) Person suing is within zone of interest that Congress meant to protect.
  • If not directly in zone of interest, will have to argue statute is very broad (ex: competing bank will have to stretch argument by saying other bank has advantage by violating statute and not printing receipts b/c they are saving money)
  • (2) Congress cannot confer standing on someone to enforce a statute where that person was completely unaffected by that statute.
  • Even with statutory causes of action, Article III’s requirement of injury in fact must still be satisfied.
  • Ex: if person in front of you at bank doesn’t get receipt, you can’t sue.
  • Luhan v. Defenders of Wildlife: government’s actions would destroy animals on endangered species list; but all they showed was that one of them had a “someday intention” to travel overseas to view the animals; no one had any current plans, studying animals, etc. no connection

(2)CAUSATION

  • Harm is fairly traceable
  • Allen v. Wright:
  • Ps and children suing IRS saying that b/c IRS wasn’t denying tax exemptions to schools that discriminate on basis of race, private schools were able to allure white kids and frustrating integration of public schools
  • There WAS injury in fact (children couldn’t get integrated education) but NO causation- couldn’t show IRS was responsible for P’s injury b/c even if IRS was denying tax exemptions, it wasn’t clear that this would change the behavior (schools would probably just be more expensive, but white parents would still send their kids there)
  • Be cautious when Ps are suing government not for something the government did directly, but rather where what government is allegedly influencing a third party.

(3)REDRESSABILITY

  • Plaintiffs have to show the relief they are seeking and the court’s order will actually take care of the alleged problem.
  • Civil penalties paid to government instead of to Ps counts b/c it deters the harm that P is alleging. (Friends of Earth v. Laidlaw)
  • Worth v. Seldon:
  • Ps alleged couldn’t move into city b/c no available housing for low/moderate income b/c two acre requirement for lots; Court said Ps can’t show zoning law was cause b/c can’t show there was a builder that would be willing to build low income housing (no causation), and even if zoning statute struck down, probably still wouldn’t be willing builders (redressability)
  • ButseeVillage of Arlington Heights v. Metropolitan Housing Department:
  • P wanted to live in complex near employment and WAS able to show that the zoning was reason b/c he pointed to an actual builder and actual project that wanted to build but couldn’t b/c of the zoning statute

SPECIALIZED STANDING

  • Taxpayer standing
  • Generally no taxpayer standing (unless actual harm such as not getting tax refund)
  • Frothingham v. Mellon: Federal taxpayer’s portion is such small percentage that harm is too minute
  • EXCEPTION: Flast v. Cohen:
  • If you satisfy two requirements (double-next test) you can have taxpayer standing
  • (1) challenging taxing or spending action of the government, not mere regulatory action
  • (2) has to be based on constitutional provision that specifically limits taxation
  • Only provision Court has recognized for this purpose is the Establishment Clause, which prohibits government from establishing religion
  • Valley Forge Christians United:
  • No standing as taxpayers b/c Ps weren’t actually challenging a taxing and spending action  what they were actually challenging was something did under its Property Power (Ps were challenging the “giving away” and not the “purchasing”)
  • Hine: executive spending of discretionary funds out of general appropriations, where Congress has not mandated, is not sufficiently connected
  • Citizen standing
  • No citizen standing
  • May besome constitutional provisions where none of us have a sufficiently concrete injury
  • Solution to this is the political process, not the courts
  • Remember that Congress can confer a cause of action, but still Art III requirement of injury.
  • Third party standing
  • Basic rule is that there is no third party standing
  • Rule of prudence  not Art III (so technically Congress could change this through legislation)
  • Reasons:
  • Avoids unnecessary litigation
  • Person who is actually harmed puts up better fight
  • EXCEPTION (the hardship exception):
  • (1) Person in front of court has suffered some concrete injury
  • (2) The person in front of the court has close relationship with third party with rights he or she wants to raise
  • (3) Some hindrance or hardship affecting the third party and that party’s ability to protect his or her own interest the other injured party cannot come into court
  • Ex: Singleton v. Wolf: doctor permitted to sue and raise rights of patients in challenging anti-abortion statute b/c (a) doctor couldn’t charge fee (injury); (b) doctor/patient relationship; (c) hardship in that woman seeking abortion wants to remain anonymous.
  • Standing of associations and organizations
  • Permissible if association raising rights of its members
  • Requirements:
  • (1) Some direct injury exists as to one or more of the members so that they would actually have standing to bring the actions themselves
  • (2) Injury has to relate to purposes of association
  • (3) Nature of injury and relief sought must be a kind where you do not need individual participation of each member
  • Usually satisfied when seeking injunction/declaratory relief
  • More difficult with damages b/c would have to address damages for each member

TIMING

RIPENESS

  • P must allege actual harm or immediate threat of harm.
  • “Bleeding plaintiff” rule- court doesn’t want to anticipate harm, wants to actually see harm
  • Issue should be sharpened so that court can decide the case precisely and narrowly
  • Example #1:
  • P trying to challenge law that has been proposed but not yet passed
  • We don’t know if law will actually passed
  • If passed, we still won’t know what provisions will be
  • Example #2:
  • P claims statute will be applied to them but haven’t yet been
  • “Dead letter” statutes: statutes have been on books forever but no one has ever applied them against anyone
  • Bauers v. Hardwick:
  • P challenging constitutionality of GA statute that made it a crime to engage in sodomy; brought by man who was arrested on that charge, but P was joined by heterosexual couple who said there mere existence of the statute chilled them from engaging in sodomy  failed to show statute was ever applied to heterosexual couple
  • Exam tip: look to see if there are events that still need to occur, or there are more details needed.
  • Example:
  • P challenging regulations as soon as promulgated but not yet applied
  • Are the regulations immediately a deterrent or obstacle to someone?
  • To the regulations right now prevent someone from qualifying for someone?
  • Is the person bringing suit even an applicant? Are they affected in the future, but now?

MOOTNESS

  • General rule: a case has to be alive (actual fight or controversy) at all stages of the litigation including appeal
  • If events take care of problem, the events have “mooted” the issue
  • If case becomes moot on appeal, appellate court will vacate lower judgments and dismiss the case as moot as if it ever happened
  • Defunis v. Odegaard:
  • Law applicant claiming process was unconstitutional on basis of race and that’s why he was denied; during law suit, he had been admitted to law school and was about to graduate; even though parties themselves didn’t raise issue, S Ct said case was moot b/c there was nothing left for the Court do on his behalf that hadn’t already happened by events
  • EXCEPTIONS:
  • (1) Class action suit
  • Even if case becomes moot as to one or all of named parties, it will not be moot so long as it stays alive for at least one member of the class
  • (2) Collateral consequences
  • May still be something adverse between the parties, even if the main claim is moot; by product issues remain in dispute even though main fight is over
  • Example:
  • Someone arrested for minor crime and person is convicted and spends 30 days in jail; person’s sentence is up by the time it gets to appellate court, but he doesn’t want the crime on his record (affects your rights such as ability to vote
  • Powell v. McCormick:
  • Improperly excluded from his seat in Congress; but by time case got to S Ct, there had been another election cycle and Congress had allowed him to take his seat this time; but not moot b/c Powell hadn’t gotten back pay from time he was excluded from his seat
  • (3) Capable of repetition to that plaintiff
  • Roe v. Wade:
  • P challenged TX abortion statute; was pregnant at time, but by time case got to S Ct, child had already been born; Ct said not moot b/c P could get pregnant again and want an abortion  capable of repetition to the particular plaintiff
  • (4) Voluntary cessation of illegal activities (“sham mootness”)
  • D tries to get case mooted by stopping whatever it is they were doing
  • Example:
  • Someone throwing garbage on your property everyday, and you seek nuisance injunction; on day of trial, D says case is moot b/c he has decided to stop throwing garbage
  • Not moot unless no reasonable likelihood that D could return to his or her old ways
  • Friends of Earth v. Laidlaw:
  • Company said case was moot b/c they shut down facility; but D had burden to show that the alleged unlawful conduct could not reasonably reoccur; company still retained license to operate and could go back into business very next day

QUESTIONS THE COURT WILL NOT ANSWER

POLITICAL QUESTION DOCTRINE

  • Courts determine:
  • Whether question is political question
  • Scope of political question
  • Two key factors that will render question a political question:
  • (1) Whether matter itself has been textually committed by the constitution for another branch to decide
  • Powell v. McCormick: government argued it was political question b/c constitution (Art I) says Congress decides qualifications of its members; but provision that permits that is limited to deciding qualifications based on age, citizenship and residency; if Congress were deciding only on these factors, it would have been political question; but Congress was excluding him for reasons other than these three, which were not matters constitutionally delegated to Congress
  • (2) If particular questions are beyond competence of enforcement capability of the judicial branch
  • Lack judicially discoverable and manageable standards to decide a case
  • Example:
  • Ct doesn’t have ability to determine what a “republican” form of government is
  • Test comes from Baker v. Carr
  • Things that ARE political questions:
  • Congress deciding qualification of own members in regard to age, citizenship, and residency
  • If Congress expels its own member through a 2/3 vote
  • Impeachment of the president or federal judges
  • Nixon v. United States: federal judge impeached while in jail for accepting bribes; claimed Senate used improper methods to convict him; Senate committee had to hear the evidence and report back to Senate who would vote; Court said up to Senate to decide what is a proper trial and impeachment; matter was textually committed to Senate in Constitution; and what is a proper trial is a discretionary matter left to the Senate
  • Matters related to foreign policy

ADVISORY OPINION