Constitutional Law

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Judicial Review

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Power of federal courts to void acts of Congress in conflict with the Constitution.

It is not in the constitution; the power comes from:
Hamilton's assumption in Federalist 78 (Paper)- constitution is binding on congress, and it is the business of the courts to interpret law. Constitution is fundamental law. If 2 laws conflict, ct must decide on operation of each.
Survived bc people like to believe no one is above the law (constitutionalism) and bc provides a remedy to unchecked power of majorities.

Marbury v Madison, Cooper v Aaron, Hunters' Lessee

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Marbury v. Madison

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Declared federal judiciary the supreme authority with respect to constitutional interpretation (Translated Federalist 78 into a judicial opinion). Relied on oath of office and supremecy clause.

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Cooper v Aaron

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Supreme Ct held that states were bound by their rulings, affirming its interpretation of the constitution is law of the land.

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Hunter's Lessee

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Supreme Ct has appellate jurisdiction to review state court decisions involving federal law.
(uniformity, states agreed to constitution)

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Limits on Judicial Review (Justiciability)

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Limitations by Congress- exceptions clause, art.3,sec2:
independant state grounds
11th amendment
no advisory opinions- Muskrat
no political questions-
must have standing, ripeness
mootness

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Exceptions Clause

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Ex Parte McCardle-
Congress can take court's appellate power over writ of habeaus corpus
Congress cannot expand court's jurisdiction beyond contstituional limits.

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Independant State Grounds

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Winner's Rule: if there is an independant state ground
on which a case is decided, sup.ct. wil not review case
separtly for the federal question.
Loser's Rule: even if there is a hot issue, if there's a
procedural screw up, case is out.

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11th amendment

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Cannot sue a state in federal court to get money out of treasury, except to sue an officer, or for 14th amendment sec 5.

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No advisory opinions

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Jsdx limited to real cases and controversies.
-must have adverse parties
-must have injury
-court cannot abstract issues or hypothetical opinions

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Political Questions

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Issue has been committed to another branch of gvmt

Referee in a boxing match; lack of adequate standards for judicial resolution of the case.

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Doctrine of feigned cases

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no case/controversey when both litigants desire same result

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Pardons

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Property rights protect vested pardons; cannot be revoked once issued.

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Justiciability Doctrines

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Provide limits on judicial review; All must be met for court to review
1. standing
2. ripeness
3. mootness

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Standing

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P must have: 1) real life injury in fact or imminent injury (significant harm to well being or finances ok- not general or theoretical), 2) caused by D, 3)which court can redress

not waivable, can be raised at any time- even on court's own motion

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Taxpayer standing

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No generalized grievances.
Exception: gvmt expenditures violating establishment clause- but NOT grants of property, general executive revenue or tax credits.

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Thirs party Standing

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discretionary; only allowed if:
1. special relationship AND
2. rights of 3rd party otherwise diluted (unlikely or unable to assert own rights)

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Standing exception: Duke Power

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Nuclear power plant had not caused injury yet but standing allowed.

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Mootness

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P's harm must continue throughout judicial process; if resolved during, case is moot.
Exceptions:
1-class actions- if one member's injury ongoing, case ok
2-repetitious injury but evading review- harm is likely to return to same P
3-voluntary cessation- D stops but is free to continue anytime.

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Ripeness

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usually law must be violated first b4 it can be challenged
except:
1-hardship P will suffer without pre-enforcement review
2- fitness of issues in record for review- is there a reason court would be better off waiting?

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Jane Fonda Timetable Act

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P1-Justiciablity (standing, mootness, ripeness)
p2- powers of president (relevant power 1-foreign affairs pleanary,2- commander in cheif of military)
BUT take care clause- pres must enforce laws, cant ignore those he doesnt like
p3- powers of congress (relevant pwr 1-spending power can stop funding or earmark conditions for furhter funding, cant make pres top troop build up or re. body armor/war-wise can only declare war and deal w UCMJ matters.)
p4- policy or case law (policy/cl 1-youngstown,2-curtiss wright)
p5-conclude

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Youngstown analysis

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soverignty-extraconst. powers to pres; nation speaking w one voice
Jackson's zone of twilight= gray area. congressional "inertia"
frankfuter analysis- executive gloss-if congress let pres get away w it, then he has that power; if he has been sending out troops at will, that is gloss.

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Political Question

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4 types cases non-justicable questions:
1- guarentee clause: US guarentees to each state a republican form of government
2- foreign policy- challenges to president's conduct
3- challenges to impeachment and removal process
4- challenges to partisan gerrymandering (district line drawing)

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Congress Power

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1-only what is express or implied in constitution
2-neccesary and proper clause- anything necc. (but not prohibited) to carry out its power
3-taxing/spending commerce clause powers
4-enact narrowly-tailored laws to enforce 14th amendment
5-appointment power of inferior officers; can limit president's removal if office is one where independence from pres. is desirable

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Congress's taxing/spending and commerece clause powers

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1-may tax and spend for general welfare
2-can regulate channels of interstate commerece
3-regulate insturmentalities, persons or things of i.c.
(trucks, planes, internet; radio waves, electrictiy, cattle,
insurance, stocks) Mann act-women over lines for sex
4-regulate activities that have substantial effect on i.c.
Is congress regulating economic activity?
Is there a substantail effect based on cumulative
effect across the country?
5-prohibit harmful commercial activity by state gvmt

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President Powers

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1-foreign policy (treaties, executive agreements, use troops in foreign countries)
2-appointment and removal power- appoints officers (senate approves); can fire any executive branch official unless limited by statute or congress

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Acquasition and Loss of Citizenship

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Born in US (14th amendment-no conditions) or naturalized. Citizenship cannot be lost unless voluntariliy renounced.

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federalism: supremecy clause

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If conflict bw federal and state/local law, fed law wins.
1-express preemption: if fed statute says fed law is exclusive in a field, state/local laws preempted (fed meat labeling act)
2-implied preemption- if fed/state laws mutually exclusive-cant comply w both, or where state law impededs fed objective, or where congress clearly intends to preempt state law (AZ immigration law)

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How do 10th and 11th amedment combine to promote state soverignty?

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if power not explivitly given to feds, it is for the states

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federalism: Dormant commerce clause

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state/local laws unconst. if they place undue burden on interstate commerece.
1-cannot dicriminate against out of state for commercial unless it passes balancing test:
2-must serve impt/compelling gvmt interest
3-means used must be substantially related to acheiving purpose
exceptions:
market purpose- if state itself is engaging in commercial activity, can favor...but not violate P+I; Unless outofstate is evil or solution rational to objective.
severance of natural resources- can charge outofst higher prices for depletion
recreational fees

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Privlages and Immunities clause

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applies only where there is discrim. against out-of-staters: cannot deny citizens of other states privilages and immunities afforded to residents (ex- in earning a livlihood) unless necessary to acheive important gvmt purpose.

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13th amendment

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fair housing act

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Use strict scrutiny when:

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suspect class or fundamental right
1. compelling interest
2. means are narrowly tailored

suspect classes: born w it, unchanging charecteristics, hx of discrimination (race, alienage, national origin)
fundamental rts: vote, access to courts, travel, privacy (incl. rts to marry, procreate, abortion)

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Use heightened security when:

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intermediate class- gender, illegitamacy, affirmative action, children of undocumented workers
1. important purpose
2. substantially related

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Use rational basis test when:

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default for all equal protection and any rights that are not fundamental (non suspect or intermeidate classes: wealth, age, mental capacity, sexual orientation*)
1. lawful purpose
2. means are reasonable to conceive

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would a law prohibiting over 2 births be unconstitutional?

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yes- part of our individual liberties includes a fundamental right to procreate as a privacy right.

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where does right to travel come from

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commerce clause, articles of confederation...it is a fundamental right but not foreign travel.

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due process and impeachment

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being tried by senate is not a violation of due process bc they can do it however they want; only removed from office once you are impeached. can keep federal job when arrested.

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2 minors have sex, only man charged

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gender discrimination- heightened scrutiny; impt gvmt interest in stopping single mothers and statutory rape- singling out men is substantially related to that goal.

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Being gay is not fundamental right, but protected by...

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fundamental right of privacy- your sexual activities in private are part of your privacy rights.

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city passes law that police have to live in city.

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does not pass P+I test bc states cant discriminate on residency in areas of business, etc.

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woman denied job w court bc of gender. sues for damages

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11th- cant sue state for money damages; can seek injunction
14th- gender discrim: heightened scrutiny- no important state interest, so it is civil rights violation.

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treaties and executive agreements

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heirarchy of laws:
1. const. incl. amendments
2. state statutes and treaties (whichever is last in time trumps)
3. executive agreements
4. state law

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executive privlage

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immunity ; not in const. implied from seperation of powers. No test for it, but pres usually wins.

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national federation of independant businesses v. Sebelius

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affordable health care act- constitutional based on the taxing power, not commerece clause.

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3 part test for dormant commerece clause

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1- does regulation discriminate against out of state competition to benefit local interests?
2-what legit gvmt interest is being served?
health, saftey, welfare, protection of natural resources
3-could interest be advanced thru non-discrim means?
yes- invalid; no- valid.

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Can discriminate against noncitizens for:

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voting, serving on a jury, or being a teacher, police or probation officer (roles that enforce democratic process)

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9 supreme court justices

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Kennedy, Breyer, Roberts*, Alito, Thomas, Scalia, Ginsberg, Kagan, Sotomayor

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invidious discrimination

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1. is there a disproportionate impact?
2. does legislative hx show discrimantory intent?
3. does time law came into effect show it was enacted for purpose of keeping certain people out?
ex: anti-apartment zoning, if existed before apartment idea, it is not a reaction.