Constitutional Law: The Judicial Power

Question 1

What article in the Constitution authorizes the federal court system?

Answer 1

Article III

Question 2

Article III provides federal courts with judicial power over all . . .

Answer 2

“cases and controversies”

Question 3

9 Types of cases and controversies Article III grants federal courts jurisdiction to:

Answer 3

1. Fed Question (constitution; fed laws; treaties)
2. affecting ambassadors, other public ministers, and consuls
3. boats (admiralty and maritime)
4. U.S. is a party
5. B/t 2+ states
6. B/t a state and citizens of another state
7. B/t citizens of different states (diversity jurisdiction)
8. B/t citizens of the same state claiming lands under grants of different states AND
9. B/t a state or citizens thereof and foreign states, citizens, or subjects

Question 4

Does the constitution EXPLICITLY provide SCOTUS with authority to determine the constitutionality of acts of other branches?

Answer 4

No. However, in Marbury v. Madison SCOTUS determined it did have the power of judicial review since the constitution is “law” and it is the province and duty SCOTUS to declare what the law is.

Question 5

What case gave SCOTUS the power of judicial review?

Answer 5

Marbury v. Madison (1803)

Question 6

Separation of Powers and Finality of Court Decisions as enshrined in the Constitution means . . .

Answer 6

each branch is separate and sovereign and the legislature cannot interfere with a FINAL decision of SCOTUS

Question 7

How can the legislative branch change what the judicial branch did?

Answer 7

They can change the law moving forward but cannot change the law as it applies to a previous SCOTUS case.

Question 8

Can federal courts review state acts? If so, what clause provides that power?

Answer 8

Yes. The supremacy clause

Question 9

What are the two types of federal courts? Whats the difference?

Answer 9

Article I and Article III courts.

Article I - congress created these courts by way of implementing its various legislative powers. Judges in these courts do not have lifetime tenure and are not protected from salary decreases. These judges can be vested with administrative and judicial functions but Article I courts are limited in that they cannot take cases traditionally heard by Article III courts.

Article III - courts established by congress pursuant to Article III sec. I. Congress can limit jurisdiction although it is bound by the standards of judicial power set forth in Art. III. Ex. Congress cannot require these courts to render advisory opinions or perform administrative or nonjudicial functions.

Question 10

Can SCOTUS issue advisory opinions?

Answer 10

No.

Question 11

What is Original (Trial) Jurisdiction?

Answer 11

Under Article III, Section 2, the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall
be a Party.” This provision is self-executing: Congress may neither restrict nor enlarge the
Supreme Court’s original jurisdiction, but Congress may give concurrent jurisdiction to lower
federal courts and has done so regarding all cases except those between states.

Question 12

What is Appellate Jurisdiction?

Answer 12

Article III, Section 2 further provides that “in all the other Cases before mentioned [i.e.,
arising under the Constitution, Act of Congress, or treaty], the Supreme Court shall have
appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.”

Question 13

What are the two methods for invoking SCOTUS appellate jurisdiction?

Answer 13

Appeal (where jurisdiction is mandatrory)

certiorari (where jurisdiction is within the court’s discretion)

Question 14

Writ of Certiorari (Discretionary):

How many justices must agree to hear a case for SCOTUS to hear it?

Answer 14

Four

Question 15

What cases may be heard by writ of Certiorari (discretionary)?

Answer 15

1. cases from the highest state courts where (i) the constitutionality of a federal statute, treaty, or state statute is called into question; or (ii) a state statute allegedly violates federal law; and
2. all cases from federal courts of appeals.

Question 16

When must SCOTUS hear an appeal (mandatory)?

Answer 16

appeal is available only as to decisions made by 3-judge federal district court panels that grant or deny injunctive relief.

Question 17

What case has been read as giving Congress full power to regulate and limit SCOTUS’s appellate jurisdiction?

Answer 17

Ex parte McCardle (1868)

Question 18

3 Possible Limitations on Congress’s power to regulate and limit SCOTUS appellate jurisdiction

Answer 18

1. Congress may eliminate specific avenues for SCOTUS review as long as it does not eliminate all avenues.
2. although Congress may eliminate SCOTUS review of certain cases within the federal judicial power, it must permit jurisdiction to remain in some lower federal court.
3. if congress were to deny all SCOTUS review of an alleged violation of constitutional rights - or go even further and deny a hearing before any federal judge on such a claim - this would violate due process.

Question 19

What are the constitutional and self-imposed limitations on exercise of federal jurisdiction?

Answer 19

1. No advisory opinions
2. Ripeness
3. Mootness
4. Standing
5. Adequate and Independent State Grounds
6. Abstention
7. Political Question
8. 11th Amendment Limits on Federal Courts

Question 20

Advisory Opinions: are they allowed and what constitutes an advisory opinion?

Answer 20

They are not allowed by Article III and an advisory opinion would be an opinion rendered in (1) moot cases, (2) collusive suits, or (3) cases involving challenges to governmental legislation or policy whose enforcement is neither actual nor threatened.

Question 21

What is the difference in an advisory opinion and declaratory judgment?

Answer 21

Federal courts can hear actions for declaratory relief. A case or controversy will
exist if there is an actual dispute between parties having adverse legal interest.
Complainants must show that they have engaged in (or wish to engage in) specific
conduct and that the challenged action poses a real and immediate danger to their
interests. However, the federal courts will not determine the constitutionality of a
statute if it has never been enforced and there is no real fear that it ever will be. [

Question 22

What is Ripeness?

Answer 22

To avoid issuing advisory opinions, federal courts require that a dispute has matured sufficiently to warrant a decision.

Question 23

Two factors courts consider when evaluating ripeness?

Answer 23

(i) the fitness of the issues for judicial decision;

and

(ii) the hardship to the parties
of withholding court consideration.

Question 24

Ripeness (factor 1): Fitness of Issue for Judicial Decision - general rule and exception

Answer 24

Generally, an issue is not fit for judicial decision if it relies on uncertain or contingent
future events that may not occur as anticipated.

Exception: A court will hold that an issue is fit for judicial decision even if it relies on uncertain or contingent future events when the future events have an immediate impact.

Question 25

Ripeness (factor 2): Hardship to the parties of Withholding Consideration - General Rule

Answer 25

A court will find that an action is ripe for review if a party would have to risk substantial hardship to provoke enforcement of law.

Ex. A state passes a law preventing aliens from owning property. An alien who is in the
market to purchase land but has not yet done so files an action to prevent enforcement
of the law. A court finds the action ripe because to force the alien to purchase land before suing would require him to risk a substantial hardship (the forfeiture of the land).

Question 26

Ripeness: other considerations - Exhaustion of Other Available Remedies

Answer 26

A claimant must generally attempt to recover using available remedies (such as administrative remedies) before filing a claim in federal court. But if an attempt to exhaust
administrative remedies would hinder the ultimate right to recover, the claim will be
considered ripe even when no attempt to obtain other available remedies has been made.
[Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162 (2019)—a Taking Clause
claim was ripe, even though the claimant had failed to avail himself of a state-law procedure to obtain compensation for takings because exhausting that remedy would have
precluded a federal claim, effectively leaving the claimant with no claim in federal court]

Question 27

What is Mootness?

Answer 27

A federal court will not hear a case that has become moot; a real, live controversy must
exist at all stages of review, not merely when the complaint is filed. [See, e.g., DeFunis v.
Odegaard, 416 U.S. 312 (1974)—dismissing as moot a white law student’s challenge to state’s
affirmative action program, since the student, although originally passed over for minority
applicants with allegedly poorer records, had been admitted to law school while litigation was
pending, was about to graduate by the time the case reached the Supreme Court, and would
receive the same law degree whether or not the affirmative action program was invalidated]

Question 28

Mootness: Exception

Answer 28

Where there is a reasonable expectation that the same complaining party will be
subjected to the same action again and would again be unable to resolve the issue
because of the short duration of the action (i.e., where the controversy is capable of
repetition yet evading review), the controversy will not be deemed moot.

Ex. (1) Issue concerns events of short duration (e.g., pregnancy, elections, divorce actions); and
(2) Defendant voluntarily stops the offending practice, but is free to resume it.

Question 29

Mootness: Class Action Rule

Answer 29

A class representative may continue to pursue a class action even though the representative’s controversy has become moot, as long as the claims of others in the class are still
viable.

Question 30

Mootness: Distinguishing Ripeness

Answer 30

Ripeness and mootness are related concepts in that the court will not hear a case unless
there is a live controversy. Ripeness bars consideration of claims before they have been
developed; mootness bars their consideration after they have been resolved.

Question 31

What is Standing (generally and factors)?

Answer 31

A person has standing
only if she can demonstrate a concrete stake in the outcome of the controversy.

Factors:

(1) Injury in Fact
(2) Causation
(3) Redressability

Question 32

Standing (factor 1): Injury in Fact (two factors)

Answer 32

(1) a particularized injury—an injury that affects the plaintiff in a personal
and individual way;

and

(2) a concrete injury—one that exists in fact. It is not
enough to show merely that a federal statute or constitutional provision has been
violated (and that we all suffer when that happens).

Question 33

Standing (factor 1): Injury in Fact - Economic Injury Rule

Answer 33

The injury does not always have to be economic. In some cases, the Court has
found that an individual is harmed because the alleged illegal act or unconstitutional action has an impact on the person’s well-being.

Question 34

Standing (factor 2): Causation

Answer 34

There must be a causal connection between the injury and the conduct complained
of—i.e., the injury must be traceable to the challenged conduct of the defendant
and not be attributable to some independent third party not before the court.

Question 35

Standing (factor 3): Redressability

Answer 35

In determining whether a litigant has a sufficient injury to establish standing,
courts ask whether a ruling favorable to the litigant would eliminate the harm
to him. If a court order declaring an action to be illegal or unconstitutional
(and ending that action) would not eliminate the harm to the litigant, then that
individual does not have the type of specific injury that would grant him standing
to challenge the action.

Question 36

When is standing required in litigation?

Answer 36

At all stages, including appeal.

Question 37

Common Standing Issues: (1) Congressional Conferral of Standing

Answer 37

Congress has no power to completely eliminate the case or controversy requirement, because the requirement is based in the Constitution. However, a federal statute may create new interests, injury to which may be sufficient for standing.

Question 38

Common Standing Issues: (2) Standing to Enforce Government Statutes - Zones of Interests

Answer 38

In some instances a plaintiff may bring suit to force government actors to conform
their conduct to the requirements of a specific federal statute. Even in such cases,
the person must have an “injury in fact.” Often, the Court asks whether the injury
caused to the individual or group seeking to enforce the federal statute is within
the “zone of interests” that Congress meant to protect with the statute. If Congress
intended the statute to protect such persons, and intended to allow private persons
to bring federal court actions to enforce the statute, the courts are likely to be
lenient in granting standing to those persons.

Question 39

Common Standing Issues: (3) Standing to Assert Rights of Others - Factors

Answer 39

Plaintiffs have standing to assert rights of third-parties where (1) the third party is unable to assert their own rights (it is difficult to assert their own rights) Ex. (the NAACP was
permitted to assert the freedom of association rights of its members in
attacking a state law requiring disclosure of membership lists because its members could not file suit without disclosing their identities)

and

(2) the injury suffered by the plaintiff adversely affects his relationship with third parties , resulting in an indirect violation of their rights (a vendor of beer
was granted standing to assert the constitutional rights of males under 21 in
attacking a state law prohibiting sale of beer to them but not to females under
21)

Question 40

Common Standing Issues: (3) Standing to Assert Rights of Others - Limitations in Family Law Issues

Answer 40

A divorced father sought to challenge on First Amendment grounds, on behalf
of his daughter, the saying of the Pledge of Allegiance at her public school
because the Pledge includes the words “under God.” A state court order gave
the girl’s mother final authority over decisions regarding the girl’s health,
education, and welfare. The mother objected to the lawsuit, and neither the
mother nor the daughter objected to the Pledge. The Court held that the father
lacked standing to bring the claim.

Question 41

Common Standing Issues: (4) Standing of Organizations

Answer 41

An organization (unincorporated association, corporation, union, etc.) has standing
to challenge action that causes injury to the organization itself. 

An organization
also has standing to challenge actions that cause an injury in fact to its members if
the organization can demonstrate the following three facts:

(i) There must be an injury in fact to the members of the organization that would give individual members a right to sue on their own behalf;

(ii) The injury to the members must be related to the organization’s purpose;
and

(iii) Neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.

Question 42

Common Standing Issues: (5) No Citizenship Standing

Answer 42

People have no standing merely “as citizens” to claim that government action
violates federal law or the Constitution. Congress cannot change this rule by
adopting a statute that would allow persons to have standing merely as citizens
(where they otherwise have no direct, personal claim) to bring suit to force the
government to observe the Constitution or federal laws. [Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992)]

Question 43

Common Standing Issues: (5) No Citizenship Standing - compare 10th Amendment Violation Claims

Answer 43

A person can have standing to allege that federal action violates the Tenth
Amendment by interfering with the powers reserved to the states, assuming
the person can show injury in fact and redressability

Question 44

Common Standing Issues: (6) Taxpayer Standing - General Rule

Answer 44

Generally No Standing to Litigate Government Expenditures
A taxpayer, of course, has standing to litigate her tax bill (e.g., whether she
really owes X dollars). However, people generally do not have standing as
taxpayers to challenge the way tax dollars are spent by the state or federal
government, because their interest is too remote. Nor do taxpayers have
standing to challenge a law granting tax credits to persons who contribute to
organizations that provide scholarships to students attending private schools. Note that such tax credits do not fall under the Establishment Clause exception below—even to the extent that the credits are available for contributions used for religious school scholarships—because the program does not
involve the transfer of government funds; thus, there is no injury for standing
purposes.

Question 45

Common Standing Issues: (6) Taxpayer Standing - Exception

Answer 45

There is an exception to the general rule: A federal taxpayer has standing to
challenge federal appropriation and spending measures if she can establish
that the challenged measure:
(i) Was enacted under Congress’s taxing and spending power (see II.A.2.,
3., infra);

and

(ii) Exceeds some specific limitation on the power.

To date, the only limit that the Supreme Court has found on the taxing power
is the Establishment Clause. (See XXII.D., infra.)

Note: The measure challenged must arise under the taxing and spending
power. Thus, there was no standing to challenge a federal government transfer
of surplus property under the Property Clause that allegedly violated the Establishment Clause. [Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464 (1982)] Neither was there
standing to challenge expenditures of executive branch general funds that
allegedly violated the Establishment Clause. [Hein v. Freedom From Religion
Foundation, 551 U.S. 587 (2007)]

Question 46

Common Standing Issues: (7) Legislators’ Standing

Answer 46

Legislators may have standing to challenge the constitutionality of government
action if they have a sufficient “personal stake” in the dispute and suffer sufficient
“concrete injury.” [Raines v. Byrd, 521 U.S. 811 (1997)]

Question 47

Common Standing Issues: (8) Assignee Standing

Answer 47

An assignee of a legal claim has standing even if the assignee has agreed to
remit any proceeds recovered from the litigation back to the assignor, if this is
done pursuant to an ordinary business agreement made in good faith. [Sprint
Communications Co., L.P. v. APCC Services, Inc., 554 U.S. 269 (2008)—a paid
collection agent has standing to bring the claims of an assignor even though the
collection agent will submit any recovery back to the assignor]

Question 48

What is adequate and independent state grounds?

Answer 48

The Supreme Court will hear a case from a state court only if the state court judgment
turned on federal grounds. The Court will refuse jurisdiction if it finds adequate and
independent nonfederal grounds to support the state decision.

Question 49

Adequate and Independent State Grounds: Adequate

Answer 49

The nonfederal grounds must be “adequate” in that they are fully dispositive of the
case, so that even if the federal grounds are wrongly decided, it would not affect
the outcome of the case. Where that is the case, the Supreme Court’s review of the
federal law grounds for the state court’s decision would have no effect on the judgment
rendered by the state court, so that the Supreme Court, in effect, would be rendering an
advisory opinion.

Question 50

Adequate and Independent State Grounds: Independent

Answer 50

If the state court’s interpretation of its state provision was based on federal case law interpreting an identical federal provision, the state law grounds for the decision are not independent

Question 51

What should SCOTUS do when it is unclear as to whether a state case was decided on Adequate and Independent State Grounds?

Answer 51

If it is unclear whether the state court decision turned on federal or state law, the
Supreme Court may dismiss the case or remand it to the state court for clarification.
However, the Court will usually assume that there is no adequate state ground unless
the state court expressly stated that its decision rests on state law.

Ex. When a state supreme court relied on Terry v. Ohio and other federal cases to suppress evidence from a search and did not cite a single state case to support its holding,
although it referred to its state constitution in the opinion, the Supreme Court concluded that the state court had rested its decision on federal law, and therefore refused
to dismiss the appeal based on adequate and independent state grounds. [See Michigan
v. Long, 463 U.S. 1032 (1983)]

Question 52

What should SCOTUS do when there is a federal constitutional claim concerning unsettles state law?

Answer 52

When a federal constitutional claim is premised on an unsettled question of state law,
the federal court should stay its hand (“abstain” temporarily), so as to give state courts a
chance to settle the underlying state law question and thus potentially avoid the needless
resolution of a federal constitutional issue. [Railroad Commission of Texas v. Pullman,
312 U.S. 496 (1941)]

Question 53

When should SCOTUS abstain from rendering an opinion?

Answer 53

1. Unsettled state law

2. pending state proceedings

Question 54

What is SCOTUS’s stance on political questions?

Answer 54

They will not decide political questions.

Question 55

What are political questions?

Answer 55

those issues committed by the Constitution to another branch of government; or those inherently incapable of resolution and enforcement by the judicial process

Question 56

What are some examples of political questions?

Answer 56

1) Questions regarding the conduct of foreign relations or issues as to when hostilities
have stopped;
2) Questions relating to which group of delegates should be seated at the Democratic
National Convention [O’Brien v. Brown, 409 U.S. 1 (1972)];
3) The procedures used by the Senate to “try” impeachments (e.g., the Court refused
to rule on the constitutionality of the Senate’s delegation of the duty to take evidence
and testimony to a committee of senators prior to the Senate deciding whether to vote
for conviction on an impeachment of a federal judge) [Nixon v. United States, 506 U.S.
224 (1993)];
4) What constitutes a “republican form of government” guaranteed to the state by Article IV, Section 4 [Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118
(1912)];
5) Whether the number of votes a candidate for Congress received is sufficient to elect
him [Roudebush v. Hartke, 405 U.S. 15 (1972)]; and
6) Questions regarding partisan legislative reapportionment (

Question 57

Political Question: Compared to nonpolitical controversy (U.S. v. Nixon)

Answer 57

Presidential papers and communications are generally considered to be privileged and
protected against disclosure in the exercise of the executive power. But where these
documents are necessary to the continuation of criminal proceedings, the question of
production is justiciable and not political. [United States v. Nixon, 418 U.S. 683 (1974)]

Question 58

What is the 11th Amendment limit on federal courts?

Answer 58

The Eleventh Amendment is a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party’s or foreign government’s claims against a
state government. [See Hans v. Louisiana, 134 U.S. 1 (1890)]

Question 59

What does the 11th Amendment bar?

Answer 59

1. actions against state governments for damages;
2. actions against state governments for injunctive or declaratory relief where the state is named as a party;
3. actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the function equivalent of a quiet title action that would divest the state of ownership of land; and
4. actions against state government officers for violating state law.

Question 60

What is barred from federal court jurisdiction by the doctrine of sovereign immunity?

Answer 60

a) Suits against a state government in state court, even on federal claims,
without the defendant state’s consent [Alden v. Maine, 527 U.S. 706 (1999)—
provision in federal Fair Labor Standards Act creating a private cause of
action in state courts against state employers who violate the Act violates
sovereign immunity];
b) Suits against a state government brought in the courts of another state,
without the defendant state’s consent [Franchise Tax Board of California v.
Hyatt, 139 S. Ct. 1485 (2019)]; and
c) Adjudicative actions against states and state agencies before federal administrative agencies. [Federal Maritime Commission v. South Carolina State Ports
Authority, 535 U.S. 743 (2002)].

Question 61

What actions are not barred by the 11th Amendment to be brought in federal court?

Answer 61

1. actions against local governments
2. actions by the US government or other state governments
3. bankruptcy proceedings

Question 62

What are the two exceptions to the 11th Amendment bar on federal jurisdicition?

Answer 62

1. Certain actions against state officers

2. Congressional removal of immunity under the 14th Amendment

Question 63

Exceptions to the 11th Amendment: What are the three actions against state officers that are exceptions to the general rule of barring federal jurisdiction?

Answer 63

a) Actions Against State Officers for Injunctions
A federal court may enjoin a state officer to refrain from future actions that
violate federal law or to take prospective actions to comply with constitutional
mandates. [Ex parte Young, 209 U.S. 123 (1908)]

b) Actions Against State Officers for Monetary Damages from Officer
A federal court may hear an action for damages against a state officer for
violations of federal law if the monetary damages are to be paid out of the
officer’s own pocket. Rationale: By acting outside the scope of federal law,
the officer is stripped of his representative capacity—the action is not one
against a state, but rather is against an individual.

c) Actions Against State Officers for Prospective Payments from State
A federal court may hear an action for damages against a state officer where
the effect of the action will be to force the state to pay money in the future to
comply with the court order. [Ex parte Young, supra] However, federal court
jurisdiction is barred if the action will result in retroactive damages to be paid
from the state treasury. [Edelman v. Jordan, 415 U.S. 651 (1974)]

Question 64

Exceptions to the 11th Amendment: what is congressional removal of immunity under the 14th amendment?

Answer 64

Congress can remove the states’ Eleventh Amendment immunity under its power to
prevent discrimination under the Fourteenth Amendment. For example, the Equal
Pay Act—based on the Fourteenth Amendment—can serve as a basis for federal
suits against a state by its employees. [Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)]

Question 65

The Eleventh
Amendment will prohibit a federal court from hearing a claim for damages against a
state government (although not against state officers) unless:

Answer 65

1) The state has consented to allow the lawsuit in federal court;
2) The plaintiff is the United States or another state; or
3) Congress has clearly granted federal courts the authority to hear a specific type of
damage action under the Fourteenth Amendment (e.g., under a civil rights statute).