What Is the Level of Generality?

What Is the Level of Generality?

  • The facts matter.
  • What is the level of generality?
  • What are the limits?

Arguments to always consider:

- Congressional Silence


- Federalism

- Justiciability

- Textual vs. Functional Approaches


  1. Any purported exercise of constitutional power must come within the defined scope of that power.
  2. The purported exercise of power may not violate limitations inherent in the structure of the Constitution, particularly those principles embodied in the separation of powers.
  3. An exercise of Constitutional power may not transgress any external limits or guarantees imposed by the Constitution. (such as those found in Bill of rights)


Authority for Judicial Review:

Marbury v. Madison (1803)

Issue: Essentially whether the Constitution (and Article 3) means anything?  YES.

- Creates SCOTUS authority for judicial review for Congressional and Presidential action

  • “The province and duty of the Judiciary is to say what the law is”  Government of laws, not men.

- Nothing expressly in Constitution that makes case come out this way

  • Marshall says it’s obvious that SCOTUS has this power
  • If SCOTUS didn’t have this power, then Congress would be Supreme Law of the land and not the Constitution.

- Power grab argument is undermined by the fact that in this case, this holding gave SCOTUS less power.

- SCOTUS has authority to invalidate statutes that are unconstitutional.

  • Also establishes that SCOTUS has appellate jurisdiction so whether or not they could issue the writ of mandamus could not be addressed there first because they do not have original jurisdiction  thus writ of mandamus act of 1789 violated the constitution.

Judicial Supremacy:

RULE: Decisions of SCOTUS interpreting the Constitution are the “supreme law of the land” for purposes of article iv, and are therefore binding on all state officers.

Martin v. Hunter’s Lessee (1816)  case about the power of the federal courts to review and invalidate decisions by state courts/laws.

Issue: Whether SCOTUS can review state court decision?  YES. (for their compliance with US Constitution)

- Creates SCOTUS authority to review Constitutionality of state court judgments and the actions of state and local officials (so long as there are federal questions).

  • Rationale = Article 3 confers appellate J to SCOTUS but says that Congress CAN create lower federal courts. Since the framers did not require there to be lower federal courts, clearly they envisioned SCOTUS to be able to review state law decisions for their compliance with Constitution.
  • Needed to be some mechanism to ensure that Constitution remained supreme and that is SCOTUS.
  • Additional need that Constitution is interpreted uniformly among the states.

- State court’s are still the last word on state law  BUT for federal and constitutional law, SCOTUS is last word.

  • SCOTUS will not decide questions of state law except to exercise constitutional avoidance.
  • State court’s don’t have to follow lower federal courts – only SCOTUS

- If case hadn’t come out this way  serious undermining of federal government and SCOTUS power.

  • Congress wouldn’t be able to pass unconstitutional laws, but the states could.
  • Big impact on criminal cases:
  • Almost all criminal cases arise in state court system
  • If no SCOTUS judicial review over state decisions re. federal laws  criminals would not get protections guaranteed by the Constitution.

Cooper v. Aaron (1958)

Issue: Are state officials bound to comply with SCOTUS rulings and court orders based upon SCOTUS’s interpretation of the Constitution?  YES.

- State actors are bound by federal court decisions.

  • Rationale = Supremacy Clause  if a state official could override the Constitution, then he would be the supreme law of the land.
  • At the end of the day, it’s not the Constitution, but SCOTUS’s interpretation of the Constitution, which is supreme law of the land  need this enforcing mechanism (ie. interpretation) to make the Constitution a body of LAW and not just a series of expected political/moral norms.
  • Here  Because Brown found the segregation policy to be violation of SCOTUS interpretation of the 14th Amendment, the same policy – which was trying to be employed by Cooper – would obviously be unconstitutional.
  • State under a general duty to comply with the judicial order in Brown.

- State actors MUST obey court orders even if they think they are unconstitutional.

  • SCOTUS’s role to decide if they are actually unconstitutional.
  • Does NOT matter if state official was not an original party to the issue  still have to follow SCOTUS’s rule.
  • Right to day in court ≠ right to re-litigate and decide that you’re not bound until that’s decided.


Limits on ability to adjudicate = JUSTICEABILITY DOCTRINES

- Focus of the inquiry is on the fact that Article 3 courts are vested with the power to exercise a specific and limited type of authority:

  • This authority = to function as decision makers in the context od disputes that are commonly understood to be susceptible to a judicial resolution.

- All 4 elements/doctrines must be met for any federal court at any level to hear the case.

- Why do we have justiciability doctrines?

  • Partially because of Article 3 “case or controversy” requirement and partially because of policy considerations involving perceptions of the proper role of the federal judiciary within the constitutional structure of government.
  • Provide a limit on federal judicial power.

- Requirements for “Case and Controversy”: (analysis starts here!)

- SCOTUS doesn’t issue advisory opinions  will only rule if there is an actual dispute  “CASE OR CONTROVERSY”

  • RULE: SCOTUS may exercise its judicial authority over those matters
  • 1. In which there is an actual dispute involving the legal relations of adverse parties AND
  • 2. For which the judiciary can provide some type of effective relief.

- IS THERE STANDING?: Whether P is the proper party to bring the matter to the court for adjudication?

  • RULE (combines all 3 elements)  P must allege personal injury that, “but for” the defendant’s actions, would not have occurred and that this injury is likely to be addressed by the relief requested from the Court.
  • RULE  taxpayers do not have standing as taxpayers, to challenge anything as far as federal tax expenditures are concerned. (would breed too much litigation).
  • EXCEPTION: Can challenge those which violate the Establishment Clause.
  • ^^^^Where P seeks several different forms of relief or asserts a number of different claims, P must separately establish standing as to each claim.


  • 1. Injury  this P has been injured or will be injured imminently
  • P can present only injuries that he personally has suffered.
  • Allen v. Wright: black family wanting to sue over IRS subsidies to segregated schools. Couldn’t because this particular family didn’t experience the harm personally / harm was too attenuated.
  • Harms alleged by P:
  • 1. Mere fact of financial aid to private schools creates a direct harm.
  • 2. Federal tax exemptions impair their ability to have desegregated public schools.
  • No bright line rule for when P has been injured  keep in mind the basic principle that when the interest or harm is either conceptually or factually to abstract or speculative it will not count as an injury.
  • P seeking injunctive or declaratory relief must show likeliness of future personal harm.
  • Congress can’t challenge line item veto because no personal injury
  • Raines v. Byrd: Line item veto act challenged by Senators and Congressmen. P’s allege that this voids each representative’s vote so they are deprived of the Constitutional right to cast their vote. (Didn’t argue that their votes didn’t count, they simply lost the vote).
  • Footnote there stated that nembers of Congress don’t regularly have standing simply based on their status as members of Congress.
  • No standing because this was an institutional injury  no member of Congress that was personally harmed and so it was a generalized grievance.
  • No standing because this power is transient and injures the office, not the individual.
  • “abstract dilution of institutional legislative power” ≠ injury!
  • Would be different if
  • 2. Causation & Redressability  D caused the injury so a favorable Court decision would likely remedy the injury for P.
  • RULE: Must be an “actual controversy arising between adverse litigants, duly instituted in courts of proper jurisdiction.”
  • RULE: Statute can’t always give a party standing and can NEVER remove Article 3 requirement for case and controversy.
  • Muskrat v. US: Congress passed statute in 1902 granting land to Cherokees. In 1906, Congress passed new statute granting land to more Native American’s. Cherokee people whose land grant was diminished because of 1906 statute sued United States pursuant to Congress’s statute that told Cherokees to sue if they wanted to argue over land grant amounts.  NO CONTROVERSY.
  • The US has no stake in this matter  even if they lost, the US doesn’t pay – the Native American’s that were granted land via the 1906 statute pay because their land grant gets taken away.  1906 people can’t have their rights taken away without their day in court.
  • Decision not enforceable against 1906 people so if SCOTUS had issued opinion, would have been merely an advisory opinion and SCOTUS doesn’t do advisory opinions.
  • RULE: Relief requested must be designed to alleviate the harm D caused to P.
  • Consider whether actions need to be taken by 3rd parties who are not a part of the case/controversy to fix P’s injury.
  • 3. No 3rd Party Standing is Allowed  P cannot present claims of others who are not before the court.
  • “One to whom application of the statute is constitutional will not be heard to attack the statute on the grounds that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”
  • Close relationship between P and injured 3rd party
  • Injured 3rd party is unlikely to be able to assert their own rights.
  • 4. No Generalized Grievances are Allowed  P must not be suing solely as a citizen or as a taxpayer interested in that the government follow the law.
  • RULE: Article 3 courts will not entertain lawsuits in which the only injury claimed by P is the shared harm experienced by all citizens and taxpayers when the federal government fails to comply with the Constitution or laws of the United States.
  • REMEMBER  grievance is NOT generalized simply because the harm generated by the government action is widely shared.
  • Taxpayer Standing  ONLY allowed in challenging government expenditures as violating the Establishment clause.
  • Where a person, suing as a general taxpayer, seeks to challenge a government tax break provision or spending program on the theory that it affects him/her only indirectly because of its negative effect on the government’s revenue  NOT allowed.
  • Why?
  • Can’t find cognizable injury.
  • Even if you found one  no evidence that even a favorable decision would give redress.
  • Would be different if there was a tax that only charged women, blacks, etc. because then it wouldn’t be general taxpayer status.
  • Complaint that laws are not being enforced properly does not give a taxpayer standing – remedy for this grievance is elections!
  • Allen v. Wright: (see facts above) the injury was too attenuated.
  • Conduct has to be traceable to injury.
  • In some cases, no one will have standing!

- IS THE ISSUE RIPE?: Is it too soon to decide this issue?

  • Criteria to look at:
  • 1. Probability that the predicted harm will take place.
  • 2. Hardship that the P will suffer without pre-enforcement review
  • Greater the hardship, the more likely reviewed
  • 3. Fitness of the issues in the record for judicial review
  • Does the court have enough before it to decide on the issues?
  • Ripeness often blends with standing because there will be an injury issue if it’s too soon to decide the case.
  • Usually a problem of not enough facts.

- IS THE ISSUE MOOT?: Is it too late to decide this issue?

  • Often events after the filing of the lawsuit end P’s injury and the case will thus be dismissed as moot.
  • Consider changes in facts and changes in law.
  • Exceptions:
  • 1. Wrongs capable of repetition but evading review
  • a. The challenged action is of such a short duration that full judicial consideration in not likely. (Think balanced budget act!) AND
  • b. There is a reasonable expectation that the same complaining party will be subjected to the same action again.
  • 2. Voluntary cessation (D stops but is free to resume again)
  • 3. Class action suits
  • P’s claim may become moot but case will not be dismissed as long as 1 class member has ongoing injury.

- IS THIS A POLITICAL QUESTION?: allegations of constitutional violations that the federal courts will not adjudicate.

  • Is this the kind of question court’s typically decide?
  • Left to elected branches to resolve.
  • While the court’s won’t adjudicate  STILL HAVE TO LOOK AT THE MERITS TO DETERMINE WHETHER OR NOT IT IS A POLITICAL QUESTION. (political question, not political case!)
  • 2 Essential Questions:
  • 1. Does the issue implicate SOP?
  • If no  no PQ
  • If yes  keep going!
  • 2. Does the Constitution commit resolution of this issue to either the President or Congress?
  • Is there a textually demonstrable constitutional commitment to one of the coordinate branches? (Baker v. Carr)
  • If yes  it’s a PQ and court must stay out
  • If no  keep going
  • Ask the policy question!
  • Are there judicially discoverable and manageable standards for resolving the controversy?
  • Does resolution of the controversy require an initial policy determination of a kind clearly for nonjudicial discretion??
  • Will judicial resolution express a lack of respect for a coordinate branch of government?
  • Is there an unusual need for unquestioning adherence to a political decision already made?
  • Will multifarious pronouncements by various departments cause embarrassment to the government?
  • Balance!  these questions give SCOTUS leeway to consider issues that should stay out of.
  • Types of political questions:
  • “Republican form of government” under the Guaranty Clause.
  • Challenges to president’s conduct of foreign policy
  • Challenges to impeachment and removal process
  • Nixon v. United States: federal judge challenging the Senate’s “trying” of his impeachment by a small subcommittee  Textual commitment of the issue to another branch.
  • Non-justiciable because the Senate’s power to impeach is solely given to the Congress via Article 1 and not for the judiciary to provide a check.
  • Challenges to partisan gerrymandering
  • Baker v. Carr: legislative apportionment is not a political question here because claim rises under Equal Protection Clause.
  • If case didn’t come out this way, there would be no incentive for TN legislatures to change anything and stop protecting incumbents, so SCOTUS needed to find a way to step in.
  • Don’t decide on the merits  peak to see if it can be decided in the courts and SCOTUS says yes!
  • Things that make a political question, a political question!: (laid out in Baker v. Carr)
  • Constitutional textual commitment of the issue to a coordinate branch
  • Did the Constitution assign the job of answering the question to a different branch of government?
  • Lack of judicially discoverable/manageable standards for resolving the issue
  • Impossibility of deciding without an initial policy determination of the kind clearly for non-judicial discretion.
  • Like balanced budget amendment  there’s enough law to adjudicate issue that budget has to be balanced, but determining a remedy is a political question because it would require the court to make a policy judgment about how to fix which would invade into Congress turf.
  • Impossibility of a court’s undertaking independent resolution without disrespecting another branch.
  • Unusual need for adherence to a political decision already made
  • Potential for embarrassment from multifarious pronouncements by various departments on one question.


- Generally, Congress lacks police power

- For Congress to act  must be EXPRESS or IMPLIED authority in the Constitution

  • Limited Federal Government (in theory): start from the baseline premise that if authority is not in the Constitution, then the federal government can’t do it.
  • BUT SEE state and local governments can do pretty much whatever they want so long as the Constitution doesn’t forbid it via supremacy clause.

Necessary and Proper Clause: (biggest potential source of power)

- “The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

  • N&P clause empowers Congress to provide the coordinate branches with the means to carry out their respective constitutional duties.
  • Ex. Authorizing other branches to create administrative agencies.
  • Congress may seek to achieve any end that is legitimate under its express powers so long as its chosen means are reasonably adapted to achieving that end.
  • McCulloch v. Maryland: Maryland trying to tax federally chartered bank of the US, which is privately owned but gives loans to the federal government.
  • SCOTUS finds that bank is necessary and proper means for the legitimate government end of securing loans to run operations.
  • RULE: States have no power, by taxation or otherwise, to impede, burden, or retard operations of the laws enacted by Congress to execute powers vested in the federal government.
  • “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.”
  • IMPORTANT: N&P can’t subsist on own  needs to be carrying out an enumerated power.
  • Here  the end is funding.
  • Court finds that this is ok but doesn’t actually address which power these means are forwarding (probably commerce)  discussion in this case suggests that SCOTUS wants Congress to actually say what power they’re using to try to achieve the ends.
  • RULE: “In determining whether the N&P clause grants Congress the legislative authority to enact a particular statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” (US v. Comstock)
  • Read Constitution as an outline  “we are expounding”
  • Policy argument:
  • “Constitution has to govern us for the ages so we don’t want to constrain the government too much so that it can’t adjust to changes” VS.
  • “Constitution has to govern us for the ages so we don’t want to expand beyond its intended limits”
  • Necessary = seemingly reasonable/convenient/useful  not absolute necessity.
  • Congress gets to decide what is necessary and SCOTUS won’t really second-guess their judgment.
  • Deciding whether something is “necessary & proper” is a value judgment  not appropriate for the court’s to weigh these issues because they are not elected.
  • Proper = whether it’s a subject on which Congress may legitimately pass laws and it not otherwise limited in some respect by the Constitution.
  • US v. Comstock: allows for civil commitment of sexually dangerous and insane federal prisoners by a federal commitment process.
  • Upheld on 5 grounds:
  • N&P grants Congress broad authority to enact federal legislation that is rationally related to an enumerated power.
  • Civil commitment is a “modest addition” to statutes already in place for years.
  • Reasonably extended a longstanding system to cover more people.
  • Statute properly accounts for state interests.
  • Link between statute and Congressional power is not too attenuated.

Taxing and Spending Power  COMMERCE CLAUSE