I.

The Federal Judicial Power A. Declaration of Independence 1. Political statement, list of grievances a. Purpose: a revolutionary manifesto declaring severance from England B. Articles of Confederation 1. Idea was that the States would remain sovereign but unity would be achieved 2. Major defects: a. No regulation of commerce b. No judicial branch c. No ability to raise revenue d. No national security C. Constitutional Convention of 1787 1. Federalists: wanted a national govnt to control everything a. Hamilton, Madison, Jay 2. Anti-Federalists: Rejected strong federal govnt (more local power) a. Jefferson b. 10th Amendment argument powers not reserved for Congress are for the States D. Federalist Papers 1. Paper 10 a. Factions - belief that the Con will prevent unjust political groups from controlling the govnt and its power a. Constitution eliminated the factions b. Only the worthiest of men would be nominated and approved 2. Paper 51 a. Separation of powers: No one branch should have too much power in selecting members of the other two branches b. Checks and Balances: No one branch can control all aspects of govnt, and presumably, if one branch goes beyond its enumerated power, it could be restrained by one of the other branches if it exceeds it. 3. Paper 78 a. Judicial branch E. The Constitution 1. Article I: Congress 2. Article II: Executive 3. Article III: Judicial 4. Ratification Process: 9 of 13 states F. Judicial Review a. Original jurisdiction i. The constitutional convention decided that the Supreme court should have original jurisdiction ii. Diversity jurisdiction 1. The belief was that the federal courts would be more fair in cases involving residents of different states unbiased judges iii. Original jurisdiction 1. Cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party 1. BG a. 1803 Jefferson wins presidential election. Adams appoints midnight judges to place federalists in judiciary branch. Marbury was supposed to be one of those judges, but didnt get his commission in on time. Jefferson did not want to correct the error. Marbury asks the Supreme Court for a writ of mandamus to compel Madison, the Secretary of State, to hand over the commission. b. Decided: Marbury has right to commissions, and has a remedy c. Facts a. On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office.

b.

c.

The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adamss term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adamss term. William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jeffersons Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1783 had granted the Supreme Court original jurisdiction to issue writs of mandamus to any courts appointed, or persons holding office, under the authority of the United States.

d.

e.

Does Marbury have a right to the commission? Does the law grant Marbury a remedy? Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? d. Can Congress expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution? e. Does the Supreme Court have original jurisdiction to issue writs of mandamus? Holding and Rule (Marshall) a. Yes. Marbury has a right to the commission. The order granting the commission takes effect when the Executives constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adams. b. Yes. The law grants Marbury a remedy. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the 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 the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. No. Congress cannot expand the scope of the Supreme Courts original jurisdiction beyond what is specified in Article III of the Constitution. The Constitution states that the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction. If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be

Issues a. b. c.

c.

d.

e.

directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction. f. Disposition a. Application for writ of mandamus denied. Marbury doesnt get the commission. g. Judicial Review a. Intrinsic within the constitution a reason/justification for judicial review b. Extrinsic proof outside the document for judicial review h. Supremacy Clause a. Article 6(2) supremacy clause i. Nullifies a lot of the power of Congress because it established the supremacy of the constitution and allows the Judiciary a lot of power b. Proports a hierarchy of weight and strength c. Established an intrinsic value that the Constitution is the highest level of law i. Marshal court a. The court spoke as a unanimous voice instead of the Lord system where each judge writes their own opinion. b. This allows for a distinct rule of law to be drawn from the cases c. No citations for the Marbury case j. Ways to analyze cases a. Frictional analysis the relationship that causes friction between two parties political i. Judicial and Executive branch relationship causes friction ii. Judicial and Legislative branch relationship causes friction k. Elements of the Federal Government a. Checks and balances i. The Marbury decision is a check on b. Separation of powers l. Non-justiciable not reviewable by the court 2. Court Reviews: a. Congress not limitless must adhere to con, and when Congress makes law that is unconstitutional, the SC can strike it down (establishes judicial review) b. SC can review the actions of Congress in furtherance of their constitutional powers c. President Take care powers are reviewable (Article II section 3) SC can review the actions of the executive branch/president in execution of his constitutional powers G. Review of State Court Decisions 1. Supremacy Clause a. Federal law trumps state law/statutes (Article VI Section 2) - unambiguous b. Constitution trumps all other federal laws c. No states can make laws in contrary to federal laws d. No federal laws can be contrary to Constitution 2. Martin v. Hunters Lessee a. Does the Supreme Court have appellate jurisdiction over decisions by the state court dealing with federal law? YES b. Facts a. The state of Virginia enacted legislation during the Revolutionary War that gave the State the power to confiscate the property of British Loyalists. Hunter was given a grant of land by the State. Denny Martin held the land under devise from Lord Thomas Fairfax. i. Act of confiscation loyalists lost their land ii. There was a treaty an agreement between two countries (highest form of binding agreement) between US and England that contained anticonfiscation clauses iii. Marshall excused himself from this case because he had a financial stake in this case b. In an action in ejectment, the trial court found in favor of Martin and the court of appeals (the highest Virginia state court) reversed. The Supreme Court of the United States reversed in favor of Martin, holding that the treaty with England superseded the state statute, and remanded the case to the Virginia court of appeals to enter judgment for Martin. The Virginia court refused, asserting that the appellate power of the U.S. Supreme Court did not extend to judgments from the Virginia court of appeals. c. Issue a. Does the U.S. Supreme Court have appellate jurisdiction over state court decisions involving federal law?

d. Holding and Rule a. Yes. The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law. i. Section 25 was constitutional exercise of judicial review 1. USSC has appellate jurisdiction 2. Creates ability to maintain uniformity 3. ii. Good for Federalism and federalist jurisprudence b. The federal power was given directly by the people and not by the States. Article III, Section 2, Clause 2 of the U.S. Constitution states that in all other cases before mentioned the Supreme Court shall have appellate jurisdiction. This demonstrates a textual commitment to allow Supreme Court review of state decisions. c. If the Supreme Court could not review decisions from the highest State courts, the state courts necessarily would be excluded from hearing cases involving questions of federal law. It had already been established that state courts have the power to rule on issues of federal law, and therefore the Supreme Court must be able to review those decisions. The Court also held that the Supremacy Clause states that the federal interpretation trumps the states interpretation. d. The Court rejected concerns regarding state judicial sovereignty. The Supreme Court could already review state executive and legislative decisions and this case was no different. Story then confronted the arguments that state judges were bound to uphold the Constitution just as federal judges were, and so denying state interpretations presumed that the state judges would less than faithfully interpret the Constitution. The Court stated that the issue did not concern bias; rather, it concerned the need for uniformity in federal law. The Supreme Court concluded that the decision by the Virginia court of appeals was in error. e. Disposition a. Judgment reversed. b. Fifty years after the Supreme Court handed down this opinion, it held in Ex parte McCardle that while the Courts appellate jurisdiction is subject to exceptions and regulations imposed by Congress, it is derived from the Constitution itself and not from acts of Congress. f. Virginia court recognized the supremacy a. Their problem was with section 25 of the Judiciary act that extended the Supreme Court power over the state courts decisions b. Congress could have passed a law saying that any case involving interpretation jurisdiction would be with the US trial court c. Congress could have also allowed a removal statute which would require the action concerning interpretation be removed to Federal courts if they were to arrive in state court d. These two solutions would still not address the question of Federalism e. Congress chose Section 25 of the Judiciary Act of 1789 3. Cohens v. Virginia & Cooper v. Aarona. a. This case expanded Martin b/c now the Court could exercise jurisdiction over state courts in criminal cases H. Unconstitutionality of Statutes 1. On its face a. No set of facts makes this constitutional 2. As applied a. The statutes application makes it unconstitutional I. Enumerated Powers 1. All laws passed by Congress must be pursuant to the powers granted to it by the Constitution. a. Congress doesnt possess a general police power b. 10th Amendment reserves to the state those powers not granted to the federal govnt c. Even if law is within one of Congress enumerated powers, it must be within constitutional limitations to be held valid. J. Necessary and Proper (Article I, Sec 8, 17) 1. Doctrine of Implied Powers a. Congress had powers implied in the Constitution in addition to those specifically enumerated. b. Based his view on BROAD reading of necc and proper clause, and on Federalist view emphasizing the need for a strong centralized govnt capable of effectuating policies of national concern 2. McCulloch v. Maryland a. Facts: Congress established act taxing federal banks. McCulloch refused to pay it. Maryland argued that Congress power to charter the bank was unconstitutional. b. The US is sovereign over the states and disallows state interference unless the US through legislation acquiesce state involvement.

3.

Under the necessary and proper clause, all powers expressly granted to the federal government in the Constitution include all incidental and implied powers appropriate for their execution. d. The supremacy clause dictates that state laws cannot burden the federal government; therefore MD cannot tax the bank. e. Facts a. Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state. The statute provided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state. The statute set forth the fees to be paid for the paper and established penalties for violations. b. The Second Bank of the United States was established pursuant to an 1816 act of Congress. McCulloch (D), the cashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act. The state court found for Maryland and McCulloch appealed. f. Issues a. Does Congress have the power under the Constitution to incorporate a bank, even though that power is not specifically enumerated within the Constitution? b. Does the State of Maryland have the power to tax an institution created by Congress pursuant to its powers under the Constitution? g. Holding and Rule (Marshall) a. Yes. Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8). b. Necessary is a policy term and the Court deems this a very loose term to be used by Congress c. Proper is a question of constitutionality and is for the court to decide d. No. The State of Maryland does not have the power to tax an institution created by Congress pursuant to its powers under the Constitution. e. Taxation without representation if Maryland taxes the bank then they are taxing the people including those that are not in Maryland and therefore would be taxed and not represented f. we must never forget that it is the Constitution we are expounding g. The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution which excludes incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate and plainly adapted to that end, and which are not prohibited, may be employed to carry it into effect pursuant to the Necessary and Proper clause. h. The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means of carrying into effect other powers which are sovereign. It may be exercised whenever it becomes an appropriate means of exercising any of the powers granted to the federal government under the U.S. Constitution. If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. i. The Bank of the United States has a right to establish its branches within any state. The States have no power, by taxation or otherwise, to impede or in any manner control any of the constitutional means employed by the U.S. government to execute its powers under the Constitution. This principle does not extend to property taxes on the property of the Bank of the United States, nor to taxes on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State. h. Disposition a. Reversed; judgment for McCulloch. b. A state sovereignty cannot exercise any rights or actions over a federal institution c. There are some execptions just as a presumption that the federal institution is not acting under directive of the federal government allowing the state to govern the institution if it violates state law while no acting under directives of federal government d. Hang them out to dry doctrine e. If there is no conflict with federal law any act that violates state law is prosecuted under federal penal codes f. Federal Torts Claims Act surrenders some federal soverne immunity in tort cases Break it down now a. Necessary = broad at the discretion of congress to fulfill their objective (McColloch) b. Proper = narrow under court review to check the Congress, must comply with the Constitution (SC) will apply review to deduce friction between branches

c.

K. The Exceptions Clause (Article III, Section 2, Clause 2) 1. Under this clause, Congress can make exceptions to and regulate the Appellate jurisdiction of the Supreme Court. 2. Appeals are 1 of 2 things: a. Writ of Certiory (Discretionary) from: i. Highest state courts where constitutionality of a federal statute/treaty or state statute is called into Q (Martin v. Hunters lessee and Cohens v. VA) ii. All cases from federal appeals courts b. Appeals (Mandatory) only by 3 judge federal district court panels 3. Ex Parte McCardle a. Facts: McCardle published articles in the South while it was under control of the national army during Reconstruction. Charged with libel under Reconstruction Acts. Sought writ of habeas corpus claiming Congress lacked constitutionality to establish a system of military government in the southern states. While this case was pending appeal, Congress got rid of the habeas corpus act which McCardle was invoking, thus taking away appellate jurisdiction from the SC. Appeal dismissed for want of jurisdiction. i. After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishing libelous and inflammatory articles. ii. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. iii. The circuit court denied McCardles habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. After arguments were heard however, Congress passed an act on March 27, 1868, repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present. b. Issue i. Does Congress have the power to make exceptions to the Supreme Courts appellate jurisdiction in cases in which it has already granted jurisdiction? ii. Must the Court always first determine if it is has jurisdiction to review a case? c. Holding/Rule i. Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to make exceptions to that appellate jurisdiction. ii. Yes. The Court must always determine first if it is has jurisdiction to review a case iii. The court held that appellate jurisdiction of the Court is not derived from acts of Congress, but from the Constitution, and is conferred with such exceptions and under such regulations as Congress shall make. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final decisions in certain cases, it operates as a negation or exception of such jurisdiction in other cases. iv. In this case, the repeal of the act necessarily removed jurisdiction. Without jurisdiction, the Court cannot proceed; the only thing it can do is announce that fact and dismiss the cause of action. When a legislative act is repealed, it is as if it had never existed except in transactions past and closed. Thus, no judgment can be rendered in a suit after repeal of the act under which it was brought. d. Notes i. Writ of Habeas Corpus produce the body the great writ comes from English law 17th century ii. COULD BE SUSPENDED only by an act of Congress iii. No writ when there is marshal law iv. Congress revoked the appellate jurisdiction of the Supreme Court v. Exceptions Clause is a regulatory power guaranteed to Congress, which says Congress has the authority to expand or withdraw appellate jurisdiction from the Supreme Court at any time. vi. Habeas Corpus Act of 1867 Congress passes to prevent habeas corpus petitions to reach the Supreme Court vii. Congress did not want the decision of the court made and these people being held released

US v Klein o Brief Fact Summary.

The Respondent, Klein (Respondent), brought suit in the United States Court of Claims, seeking compensation for property taken during the Civil War. The Respondent now argues for affirmation on appeal. Synopsis of Rule of Law.  Although Congress has power to limit the appellate jurisdiction of the federal courts, it may not use this power to effectively prescribe a rule for the decision of cases before the courts. Facts.  The Supreme Court of the United States (Supreme Court) had ruled that a presidential pardon had the effect of proof one did not support the rebellion. This allowed pardoned individuals to petition for return of property or compensation from the federal government. In response to the decision, Congress passed a statute stating that a pardon was inadmissible as evidence in a claim for seized property. Congress went further and required that if a court find that a pardon was secured without an express disclaimer of guilt (of aiding the rebellion), such finding was to act as a bar to jurisdiction. The estate of the Respondent who was pardoned had received a judgment granting recovery from the Court of Claims. The United States now appeals, arguing that the statute requires dismissal of the case for want of jurisdiction. Issue.  Is the statute in question a valid exercise of congressional authority under the Exceptions and Regulations Clause of the United States Constitution (Constitution)? Held.  No. Judgment affirmed.  By requiring the courts to make a specific finding of fact in a case over which the court has jurisdiction and then removing the courts jurisdiction after the finding, Congress is not limiting jurisdiction, but rather prescribing a rule of decision for the courts.  Congress impaired the presidential pardons by requiring that they be inadmissible as evidence in these cases. The President of the United States has the constitutional authority to pardon offenses. By disallowing the full effect of the pardons, Congress attempted to reduce the Presidents constitutional authority. Discussion.  United States v. Klein does not represent Exceptions and Regulations jurisprudence as much as it represents the separation of powers outlined in the United States Constitution. The statute overreached the power of Congress by attempting to exercise authorities constitutionally delegated to the judicial and executive branches.

II. Case or Controversy A. Case or Controversy Requirements (Article III, Section 2) 1. Definition: Judicial Power shall extend to exumerated cases or controversies a. This provision forbids the Supreme Court from invalidating legislative or executive action merely because it is unconstitutional. b. The Court may rule only in the context of a constitutional case. B. The Court may not issue an opinion for a case where: 1. No Standing a. P must have a stake in the controversy 2. Not Ripe a. Case not decidable if it has not yet become sufficiently concrete b. EXCEPTION: Declaratory Judgment Action 3. Case is Moot a. Case is moot if events occurring after the filing have deprived the plaintiff of a stake in the controversy b. If it is a case that will always be moot the court may hear it. (Example Abortion). 4. The Supreme Court cannot give advisory opinions a. Example: John Jay refusing to give advice on the Treaty of Paris C. Declaratory Judgment Action: 1. Asking for declaratory relief: a. They wish to engage in specific conduct and that challenged activity poses a real and immediate danger to their interests (ripeness/mootness) b. Fairly traceable to D c. Relief a decision in Ps favor would eliminate the harm because they could grant an injunction

III. Standing B. Type 1: Constitutional/Article III Standing Three Part Test (must be pleaded in complaint) 1. Injury-in-fact a legally congnizable injury a. Must be actual, imminent, or already sustained b. Cannot be generalized, abstract, hypothetical, or to a third party c. May be mental, stigmatic, or aesthetic i. Aesthetic injury right to the view i. Loosing through legal activity is ok but if through illegal activity then its not permitted 2. Nexus/fairly traceable to D a. This prong has a lot of latitude and is rarely an issue. b. Injury must be traced to the D as the committer c. What would the government submit with the answer i. Affidavits ii. Answer iii. Affirmative defenses possibly iv. Memorandum of law that would should that although there arent exact cases like it but a lot of other relevant cases showing this case should be dismissed 3. Redressability a. Must be likely that a favorable court decision will redress the injury b. Does a remedy exist? Not necessarily collectable but can be granted 4. Defenders of Wildlife v Lujan = Failed on Prong 1 C. Allen v Wright = Failed on Prong 2 a. Childred never have standing 2. Facts a. The Internal Revenue Service denied tax-exempt status to racially discriminatory private schools and established guidelines for determining whether particular schools were racially nondiscriminatory. b. These were private school which were set up to allow white children to leave the desegregated public school system c. Wright and other parents (P) of black children who were attending public schools undergoing desegregation brought a nationwide class action lawsuit against the IRS and certain private schools in federal district court, seeking declaratory and injunctive relief. d. Allen (D) was the head of one of the private school systems named as a defendant. e. Wright alleged that the IRS had not adopted standards and procedures sufficient to satisfy its obligation to deny tax-exempt status to racially discriminatory private schools, thereby harming the plaintiffs directly and interfering with their childrens opportunity to attend desegregated public schools. f. Wright also alleged that many racially segregated private schools had been created or expanded while the public schools were undergoing desegregation, and that these private schools had received tax exemptions despite the IRS policy. g. There was no allegation that the children of the plaintiffs had ever or would ever apply for admission to any private school. h. The District Court permitted intervention as a defendant by petitioner Allen. The District Court dismissed the complaint for lack of standing. The Court of Appeals reversed and the Supreme Court granted cert. i. The treasury department answers that the plaintiffs have failed to establish standing as a matter of law i. 3. Issue a. What is required in order for a party to have standing to bring suit? 4. Holding a. The Article III doctrine of standing requires that a plaintiff must allege personal injury fairly traceable to the defendants allegedly unlawful conduct, and likely to be redressed by the requested relief.

b. c.

d.

e.

f.

g. 5. Notes a.

Federal courts may exercise power only in the last resort and as a necessity, and only when adjudication is consistent with a system of separated powers and the dispute is one traditionally thought to be capable of resolution through the judicial process. The plaintiffs claim that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools fails because it does not constitute judicially cognizable injury. An asserted right to have the Government act in accordance with law, without more, is not sufficient to confer jurisdiction on a federal court. i. Thwarting the desegregation of school Plaintiffs also do not have standing based on the stigmatizing injury often caused by racial discrimination. Such injury accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct, and respondents do not allege a stigmatic injury suffered as a direct result of having personally been denied equal treatment. The plaintiffs claim of injury arising from their childrens diminished ability to receive an education in a racially integrated school though a judicially cognizable injury fails because the alleged injury is not fairly traceable to the Government conduct that is challenged as unlawful. Respondents have not alleged that there were enough racially discriminatory private schools receiving tax exemptions in respondents communities for withdrawal of those exemptions to make an appreciable difference in public school integration. It is entirely speculative whether withdrawal of a particular schools tax exemption would have a significant impact on the racial composition of the public schools. To recognize respondents standing to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties would be contrary to the idea of separation of powers that underlies standing doctrine. The Constitution assigns to the Executive Branch, not to the Judicial Branch, the duty to take care that the laws be faithfully executed. Constitutional right under the 13th amendment that race should not be used as a factor in determining whether a person can or cannot enter into a contract

This case was more in the interest of a special interest group interested in stopping or altering a regular practice think tanks or civil rights groups b. These groups have limited resources and pick their time and place very carefully to make their point c. The test i. The families are entitled to desegregated schools and with this action of the governemtn by failing to withdraw exemptions from these schools prevents the desegragation of these schools so there is an injury d. Dissent i. The courts opinion is rational but the court is preventing the plaintiff from exploring the data at greater length and therefore preventing discovery to show that their complaint can be substantiated D. Type 2: Prudential 1. SC derived and is used to limit access to courts despite Article III standing a. Courts ability to use its discretion to avoid friction between branches. E. Type 3: Organizational 1. Requirements: a. Allege members of organization would be injured. b. Injury must relate to the purpose of the organization. y Example: EPA alleges that it relates to an environmental injury. c. The nature of the litigation doesnt require the presence of members of the organization 2. Massachusetts v. EPA F. Type 4: 3rd Party 1. There is no standing for generalized grievances aka an allegation of a violation of constitutional or statutory right that affects all people a. Elk Grove Unified School District v. NewdowDad hates the pledge case lost because he didnt have 3rd party standing (he didnt have custody). b. Abortions Dr. can bring the suit for a patient against a law making it harder to receive an abortion because the patient is injured by not getting one, and the Dr. is potentially injured because he does them for a living. As long as both parties suffer, one person can bring it on behalf of them both. IV. Political Questions (Court doesnt decide these)

A. Definition 1. A QUESTION that the Court will NOT CONSIDER b/c it involves the exercise of DISCRETIONARY power by the executive or legislative branches. a. The primary ground which the Court finds a case to involve a nonjusticiable political question is: THAT THERE IS NO JUDICIALLY COGNIZABLE STANDARD BY WHICH TO ASSESS THE CLAIM OF UNCONSTITUTIONALITY. B. In order to say whether there is a political Q 1. The courts have to examine both: g. Constitutional provision h. Ps legal claim 2. Then ask: Does the former set out criteria by which a court can assess the latter? a. If NOT, the question is labeled political

C. Political Qs are: 1. Those issues committed by constitution to another branch of govnt a. Example: Legislative apportionment b. Baker v. Car 2. 3. Those inherently incapable of resolution and enforcement by the judicial process Political Qs include: a. Qs regarding the conduct of foreign relations or issues as to when hostilities have stopped; Qs relating to which group of delegates should be seated at the DNC; the procedures used by the senate to try impeachment Political Qs are not: a. Presidential or congressional discretion about members; legislative apportionment; presidential papers and communications.

4.

D. Cases 1. Baker v Carr -- Court held this WAS NOT A POLITICAL QUESTION.

a. The fact that a suit seeks protection of a political right does not mean that it is necessarily a
2. 3. political question. Vieth v. JubelirerCourt held this WAS A POLITICAL QUESTION. Difference between 2: in Baker, gerrymandering was a legal problem since it involved equal protection. Since there was a diminution of a vote based on race, it is justiciable

V. Commerce Clause (Article I, Section 8, Clause 3) A. Definition 1. Gives Congress the power to regulate commerce w/ foreign nations, and among the several States and among Indian tribes. a. All to promote a National Marketplace B. Three Categories of Activities that Congress can regulate under the Commerce Clause: 1. Channels the arteries of commerce a. The way in which people and items move between the states. i.e.: railroad, highway, planes, water. 2. Instrumentalities the goods themselves a. The actual product in interstate commerce. (People, machines, etc. anything that travels through the channels). b. SC deferential to Congress with regard to instrumentalities. Activities that substantially affect commerce a. activities that are entirely within one states borders may have an effect on interstate commerce b. Just b/c an activity is wholly INTRA state, it may still affect INTER state commerce.

3.

C. Stafford v. Wallace

1.

If whats being regulated is traditionally the domain of the States, the court is less likely to find Congress acting within its commerce powers a. Ex. Public health, safety, welfare, and anything in states police power

D. Gibbons v. Ogden 1. Creates the 3 categories to regulate and the requirements of state power a. ALA Schechter must affect IC right now b. NLRB & Darby any part has a substantial burden or affect, it can be regulated by Commerce Clause/Congress E. Civil Rights EPA/ 14th Amendment and CC 1. Heart of Atlanta motel discriminated vs blacks a. Blacks could not travel t/f substantially affects IC b. Congress can pass 14th Amendment and claim to regulate 2. 3. Katzenbach restaurant discriminated vs blacks a. Unless the restaurant is remote and only visited by a few people, it is okay to regulate Creates the constitutional tort

F. New Federalism Modern restrictions on CC 1. Lopez gun at schoolgrounds a. Activity here was not itself commercial activity didnt substantially affect commerce b. No nexus between IC and the gun used here c. This is for states to regulate 2. Morrison violence v. women act a. This regulation isnt economic activity for other powers.

G. Misc Cases 1. Wickard v Fillburn a. Cumulative Effect Theory: Congress may regulate not only acts which taken alone would have a substantial economic effect on interstate commerce, but also an entire class of acts, if the class has a substantial economic effect. 2. Champion v Ames a. Congress makes transportation of some things contraband while they are able to be freely used instate Shreveport Rate Case a. Congress may regulate intra-state commerce instrumentalities if their use bears a close and substantial relation to interstate commerce Stafford v Wallace a. The intrastate activity is so closely related to interstate commerce that Congress can act. NLRB a. Activity occurring within a state must impose a substantial burden/effect on interstate commerce b. Congress can regulate intrastate production if the activity has affect on interstate commerce c. Here: employees on strike could substantially affect interstate commerce.

3.

4. 5.

Congresss Commerce Power before 1937: Court gives less deference to the Commerce Clause Power. y y y Congress can use Commerce Clause to create crimes Example = Champion v. Ames If something can be regulated or banned, then those engaged in that activity can be made subject to criminal sanctions

Congress Commerce Power After 1937 cases: Court Gives More Deference to Commerce Clause Power y y y y New Deal: describes the period in US history that was a significant regulatory period. Governments saw the need to use their powers to protect the people and the market. So this created tension in the supreme court to be concerned with the government overacting. The Commerce Clause becomes like the states police power So essentially, so long as Congress didnt violate a specific check on its power (example the bill of rights) it could set any terms it chose to set for defining and regulating interstate transportation.

Civil Rights and the Commerce Clause: y y Heart of Atlanta Facts: Plaintiff refused to have blacks in their motel and sought a declaratory judgment saying that Title II of Civil Rights Act was unconstitutional. Title II banned discrimination in places of public accommodation which serve interstate travelers or which buy food. Here, the detrimental effects of disallowing blacks from places of public accommodation substantially affects interstate commerce. Katzenbach Facts: Restaurant caters to whites, with take out for blacks. Bought $150,000 worth of food, $70,000 was meat from out of state suppliers. Restaurant challenges constitutionality of Title II. Court upholds Title II. Congress can regulate this restaurant b/c they bought food interstate, some customers were out of state, and the cumulative effect of restaurants not serving blacks would hamper interstate commerce. Creation of the Constitutional Tort Review of Declaratory Judgment Actions Redefines standing by allowing the plaintiff to assert the first prong of the three part standing test by showing that he/she reasonably anticipates a legally cognizable injury if there is not clarification of an underlying legal claim as to the constitutionality of a statute or regulation.

y y y y y y y

New Federalism under the Commerce Clause y y Lopez Facts: Congress banned guns in school zones and the Defendant was arrested for carrying a gun in the zone. Congress argued possession of a gun near school affects interstate commerce b/c it reduces education which in turn affects business negatively. Court found it unconstitutional. Court holds that while guns have an effect on interstate commerce, so does all crime, but there must be a substantial effect, some nexus between the activity and the interstate commerce. The Court establishes that the activity which Congress is regulating must in fact have a substantial effect on interstate commerce. Here the criminal statute has nothing to do with commerce Morrison Facts: Court held the civil remedy provision of the Violence Against women Act unconstitutional. Statute provided a remedy for the victim against any person who commits a crime of violence motivated by gender. This case has nothing to do with interstate commerce. Here, the nexus between the violence against women and interstate commerce is too tenuous.

y y y y y y y

VI. The Dormant Commerce Clause State Regulation of Interstate Commerce A. Definition

1. 2.

There mere existence of the federal commerce power restricts the states from discriminating against, or unduly burdening, interstate commerce. A state may not take itself out of the stream of commerce if it means that other states will bear the burden of its isolationism.

B. Three Part Test 1. The regulation must pursue a legitimate state end 2. The regulation must be rationally related to that legitimate end 3. The regulatory burden imposed by the state on interstate commerce must be outweighed by the states interest in enforcing its regulation C. Three Dirty Words of the Dormant Commerce Clause 1. Discrimination 2. Protectionism 3. Downstream Regulation: regulating a persons choice

comes from the Market Participation Doctrine

D. P in DCC 1. The plaintiff in a dormant commerce clause case has the burden to prove that a state is acting in an unconstitutionally discriminatory way, in order to unconstitutionally protect its own citizens. E. Interstate Compact Clause 1. Prevents states from entering into any formal agreement or compact with one another, without the consent of Congress. 2. Kassel: Here the court weighed the purported safety purpose against the interference with interstate commerce, and found that the law offered no real safety benefit yet substantially burdened commerce. a. A state law introduced to further safety, even if it burdens commerce so substantially it may be invalidated. 3. Carbone: A state law is per se invalid under the CC if it discriminates in favor of local interests unless the state has no other means to advance a legitimate local interest. F. Market-Participation Doctrine 1. Supreme Court held that States may discriminate when they act as participants in the market, but NOT when they act as regulators. a. The limit of the market participant doctrine allows a State to impose burdens on commerce within the market in which it is a participant, but to go no further. b. The State may not impose conditions that have a substantial regulatory effect outside of that particular market. VII. 11th Amendment A. What it says 1. The Amendment, and the Supreme Court's ruling in the case of Chisholm v Georgia, clarified that the federal courts can hear cases brought by private citizens against states, and states do not get immunity from suits that are brought by citizens of other states. VIII. Presidential Powers A. Article II, Section I: executive power shall be vested in the president 1. Much of Presidents power in the Constitution is implied B. Executive Orders 1. Proclamations: harmless a. Emancipation Proclamation 2. Executive Order a. Carries out law passed by Congress b. Make sure law is implemented, no constitutional issues Power comes from the Take Care Clause

3.

C. Domestic Affairs 1. Youngstown Sheet & Tube v. Sawyer

a. Congress is the lawmaking branch and the President can only execute the laws, not make themhere Truman made law. D. Foreign Affairs 1. US v Curtiss-Wright

a. b. c.

President has the right to act in matters of foreign affairs w/ a high degree of discretion. This power is derived from inherent powers in the Constitution. It is necessary for participating in the international realm.

E. Jacksons 3 part test to determine the degree of presidential power in different situations: 1. President acts pursuant to express or implied authorization of Congress.

a.
2.

His power is greatest when congress backs him (he has Article 1 and 2 working in his favor )

President acts when Congress is silent or there is concurrent authority. (Twilight Zone) a. Can only rely on his Article 2 powers, but this is sometimes okay because the framers intended the president to exercise authority in times when Congress could not convene in time. President acts in contradiction to the express or implied will of Congress shaky ground, friction a. His power is the lowest and he can only rely on his constitutional powers minus any constitutional powers of congress on the matter

3.

F. Executive Privilege 1. Immunity Not applicable to criminal sanctions or those unrelated to the scope of office a. President has absolute immunity for damages liability for acts w/in the outer perimeter of official duty. (Nixon v Fitzgerald) b. Test: In the scope of his duties? IX. Preemption Clause (Congress v. State) A. Preemption Definition 1. Certain state action is preempted by federal, Constitutional law. a. Constitutional power is usually the Supremacy Clause. b. When Congress preempts, it is acting under Constitutional power and removing any state power. c. If the state law operates as an obstacle to the accomplishment and execution of the full purposes and objectives of a federal law, the federal law preempts the state law. B. Three Forms of Preemption 1. Express: all encompassing, explicit preemption; removes any of the States power. a. Congress can, through preemption, take an entire field of regulation away from the States under the CC. b. Congresss power is plenary, which thus can result in total preemption. c. A state law which violates a federal laws prohibitions would be preempted by the express language of the federal statute. Field: in a particular case, the court may find based on the record that federal regulation is so pervasive as to make the state or local regulation inoperable. a. The court determines that Congress intended to occupy the field, even if thats not clear from the legislation. b. This is a friction reduction mechanism. Conflict: compliance with federal and state regulation is a physical impossibility or where state law stands in the way of accomplishing and executing Congress objective. a. The federal law will trump the state law b/c of the Supremacy Clause.

2.

3.

X. 10th Amendment: Limitations on Congress Power A. Anti-commandeering Principle 1. New York v. United States and Printz v. United States, prohibits the federal government from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials.

XI. Powers of the President

Hire/Fire Powers of the President: Hire At will 2/3 Senate Approval 2/3 Senate Approval Fire At will At will ** At will

At will employees (white house chef, secretary, gardener, etc) High Civil Officers (ambassadors, cabinet members) High Military Officers

** Exception: Congress can create by law, procedures for the removal of someone. This is a statutory basis for due process (i.e.: procedures are created for Article 1 judges and courts ) A. Treatises 1. How made a. President: enters into treaties/signs them b. Congress: Treaties given Congress an independent source of authority to legislate 2. Two kinds of treaties: a. Self executing: No laws are needed to carry it out once its signed, its in effect b. Non Self Executing: Enforcement of the treaty requires legislation 3. Power comes from: a. Article I Section 8 gives Congress the power to enact legislation that is a necessary and proper means to execute a treaty created under Article II Section 2, (even if the statute by itself is unconstitutional) since power to ratify treaties is an enumerated power. XII. Congressional Spending Power (General Welfare Power) A. Article I; Section 8; Clause 1 1. Gives congress the power to lay and collect Taxesto pay the debts and provide for the common defense and general welfare of the United States. a. Congress is given no general police power. b. Congress determines what general welfare is and the Court gives deference to what the determination is. c. With spending power the govt can spend money any way it wants but its regulation on states is only conditional. d. Therefore, Congress cannot regulate for the general welfare but can offer conditional spending for the general welfare. B. Four Steps to Analyzing a Spending Case 1. 2. Is the exercise of the spending power made for the general welfare? a. Complete deference given to Congress on this issue. Is there a rational nexus between the purpose of the program and the imposed conditions? a. Low level of scrutiny b. Lack of a nexus raises the sovereignty issue. Does the act conflict with any other constitutional protection? a. It must NOT. b. If its not conditional spending, not constitutional issue. Is the condition coercive? a. ONLY inducement is allowed, no coercion. b. The amount Congress withholds can never be 100%. c. South Dakota v Dole -- shows 5% is not coercive, but 50% probably is. Need to analyze the in between to see if its constitutional.

3.

4.

XIII.

Race and the Constitution A. What in the Constitution specifically addresses the issues of race? 1. Article I, Section 2, Cl 3 a. required reapportionment of seats in House of Reps on basis of the whole number of free persons in each state minus number of Indians not taxed plus 3/5 of all other persons 2. Article I, Section 9, Cl 1 a. prohibited Congress from outlawing the importation of such persons as any of the states now existing shall think property Article IV, Section 2, Cl 3 a. Required states to deliver up any persons held to service who had escaped into their territory. b. Only section of the Constitution that places an affirmative duty upon the statesrendition clause 14th Amendment: Due Process and Equal Protection Clause a. No STATE shall deny to any person due process and equal protection of the laws. b. The bill of rights are applied to the state through the due process clause of the 14th amendment c. When discussing Equal Protection, key argument is: similarly situated because EP is comparative

3.

4.

B. Two Types of Segregation 1. De jure: There is an action by govt officials, acting in that capacity that creates unlawful segregation. a. Usually there is a racist animus, de jure segregation can arise from an unlawful program intended to benefit minorities b. Zoning (minority housing on other side of town), school ratioing (2 blacks, 348 white kids in school), different programs in schools 2. De facto: Any separation of the races not caused by govt officials a. i.e.: white flight, economic downturns that may cause mobility of one race and not another b. LAWFUL (constitutional) c. De facto segregation is constitutional b/c its outside the constitution

C. Plessy v. Ferguson 1. Deals w/ racial classification based on appearance AND family background a. Argued that statute of separate but equal riding cars violates EQP of 14th Amendment (This is an example of DE JURE segregation -- Segregation by law or color of law) b. Court announces doctrine of separate but equal : court is applying the terms of the 14th amendment very literally and narrowly. c. Blacks are getting EP of the laws according to this court under doctrine of separate but equal D. Brown v. Board of Education P1 1. Separate but Equal is NOT okay in PUBLIC schools a. No relief was discussed because the court hoped that issue would become moot by states integrating on their own. b. Didnt want to step too much on state sovereignty, so they gave the districts time to resolve the issue since each district was so different. 2. Part 2 a. Didnt happen right away lots of protests b. Court ordered that schools be integrating with all deliberate speed c. WTF does that mean?? Lots of problems enforcing order.

XIV.

Post Brown Era A. Dejure Segregation 1. After Brown there were a series of cases dealing with dejure segregation in public facilities such as pools, parks, etc. a. Ds argued Brown was inapplicable because education was fundamental and these facilities were not, and could be segregated b. Court says NO. public places cant be segregated c. Many facilities/schools closed themselves down problem for blacks d. However, when schools closed, white kids at home annoying parents so eventually they agreed to desegregate

B. Individual Rights 1. When we deal with individual rights we are extremely concerned with: a. The subject matter because it determines b. What standard of review should be applied 2. The issue is: a. WHO is entitled to equality

XV. Equal Protection Cases A. General: 1. In all equality/equal protection cases the P is trying to prove that they are similarly situated to the group that is getting the benefits 2. Apply the TESTS BELOW B. Rational Basis 1. Everyone else mentally disables, sexual orientation a. Government must have a legitimate purpose b. Must be a rational nexus between the purpose and means chosen to achieve it. 2. Usually the government wins because the court is deferential to these types of cases. a. This is clear because there is a heavy burden placed on the P, which they usually cannot meet. b. This is because the SC recognizes the fundamental role of Congress and the state legislatures to determine what society needs in the form of legislation. c. This is all an effort to avoid friction.

C. Intermediate Scrutiny 1. Gender a. Means must be substantially related to an important government interest b. Government has the burden of proof instead of P a lot harder to justify D. Strict Scrutiny 1. NORRA Only in these a. Means must be narrowly tailored to a compelling governmental interest b. High standard here c. Govnt has burden of proof 2. Established in Koramatsu case

NORRA the ONLY times you use strict scrutiny National Origin Race Religion Alienage (noncitizens) XVI. Rational Basis A. Use 1. When there are no fundamental rights involved, no defined class mentioned a. Examples: White sock hypo, economic regulations, housing, food, public welfare, disproportionate impact cases 2. NOTES a. Rational basis can be applied even to race cases or other cases where P alleges differential treatment based on race, gender, etc b. When the statute is facially neutral and D denies they are differentiated based on such factors, court applies rational basis test for Ds conduct and P will have a heavy burden to defeat the purpose.  i.e.: All deli owners must pass health inspection or lose their deli. 99% of delis in NY are owned by Koreans. Koreans bring suit alleging discrimination based on race. This will be a rational basis test and Ps will most likely lose.

XVII.

Gender A. Differential Treatment

1. 2. 3.

There are real differences between men and women that might result in differential treatment a. As opposed to race which the only reason for differential treatment would be based on personal bias. Thus, the court ruled that government should be subject to lower level of scrutiny for gender than race, but higher than rational basis. Hypos a. Pregnant cop taken off streets sues: Although she claims to be (1) Stereotyped (2) Stigmatized she will probably lose because of the real difference between her and a man. b. Women not allowed to work in maximum security sues: Govnt could meet burden because social differences (rape) BUT would need remedy that would give females alternate route that would enable them to get same promotion FEMALES CANT BE UNABLE TO GET A PROMOTION BECAUSE THEY ARENT ALLOWED TO WORK IN THE SUPER MAX PRISON.

B. Intermediate/Heightened Scrutiny 1. Important governmental purpose a. More than legitimate, less than compelling 2. 3. 4. Means must be substantially related a. not simply rationally, not most narrowly tailored Evidence presented must be exceedingly persuasive NOTE: Only when D acknowledges differential treatment and then justifies it, that the burden shifts and higher level of scrutiny applied a. 5. Why? Because when the D says, Yes we treat these people differently it needs to be tested whether or not they have a legal, viable reason for doing so.

ONLY purpose of these tests is to determine whether differential treatment is proper

C. Substantive Due Process 1. What is SDP? a. A right the constitution protects b. Grounded in the 14th amendment and the state cannot impose unless there is a rational basis. 2. In a SDP case a. The P is asserting a liberty interest in behaving in a certain way that by law the govnt does not want you to behave. Rational basis is the standard of review. Hypo: NY passed law that nobody will wear white socks and shoes while theyre at work. a. To challenge this, someone needs to bring an action against NY under substantive due process. b. Would claim there is a substantive right grounded in 14th amendment to wear white socks and shoes and t/f the state cannot impose unless they have a rational basis Substantive Due Process v. Equal Protection a. Equal Protection is COMPARATIVE: similarly situated  i.e. this man can wear white socks and shoes but I cant b. Substantive Due Process asserts that substantive rights are being denied by the govnt and they have no basis doing it  Note: Usually these laws are upheld because of deference given to state

3. 4.

5.

D. Modern Substantive Due Process 1. Privacy: Griswold v. Connecticut a. Prohibited any person to use any drug, medical article, or instrument for purpose of preventing conception or any doctor from giving advice for avoiding conception. b. This case was launching pad for unenumerated individual rights jurisprudence c. This was substantive due process because a person has right to discuss contraception/their body with their doctor

E. Personal Autonomy 1. Eisenstadt v. Baird a. Deals with a single person who wishes to use contraception as opposed to Griswold where parties were married. b. Equal Protection case claimed BUT they werent really, because the P is not really similarly situated to Griswold (they were married, here unmarried) c. Case is a personal autonomy issue (the right to choose to do with you want with your own body) F. Abortion 1. Abortion standard a. An abortion law is judged based on whether a legal restriction places a substantial obstacle that causes an undue burden