Constitutional Structure & Judicial Power/Review

Question 1

What are some of the functions of the constitution?

Answer 1

1. Separate and allocate powers
2. Protect Individual Rights
3. Structure

Question 2

True or false: Federal law is the supreme law of the land

Answer 2

True.

Federal law = Supreme Law of the Land (see Art. VI §2)

Question 3

Where are individual rights mentioned in the Constitution? Why aren’t more individual rights expressly mentioned in the constitution?

Answer 3

Art. I. §9 Habeas Corpus

Art. III §2 trial by jury

Art. IV §2[2][3] treason

Why individual rights not listed in main text of the document?

1) Individual rights considered sufficiently protected by virtue of the separation of powers
2) Thought to be unwise to list them because the drafters knew it to be impossible to list every single right and therefore didn’t want to list some and risk the future interpretation that unlisted rights were excluded by the constitution
3) Function of government entitles remedy when a right has been shown to be violated (but note that there are exceptions like the Statute of Limitations)

Question 4

How are the federal powers separated in the Constitution?

Answer 4

Article I: Legislative Branch made up of two houses: Senate and House of Representatives
Article II: Executive Branch
Article III: The U.S. Supreme Court/Judiciary

Question 5

Why does are two branches of government so important in Article I?

Answer 5

Legislative Branch made up of two houses: Senate and House of Representatives

1) Slows down passage of a bill
2) Compromise made between small and large states as far as representation
3) Power is spread out even within the single branch of the legislature
4) Constitution requires that the two houses work in cooperation with each other
5) §8 Congressional powers granted (e.g. tax & spend etc.)

Question 6

Why is Article II so small, yet so powerful?

Answer 6

Article II: Executive Branch

1) President appoints judges and Senate confirms
2) Appoint and removal of executive officers
3) Declare war?

Question 7

True or false: Article III grants the President authority to set up the lower courts

Answer 7

False.

Article III: Grants power to CONGRESS to set up lower federal courts

Also:

1) Justices hold office during “good behavior” rather than on a basis of years like everyone else
2) Congressional impeachment and conviction (must be for egregious conduct x2)
3) Judicial compensation cannot be diminished by Congress (so that Congress can’t punish judges for decisions against Congress…)
4) Somewhat troubling that the one branch not answerable to the public (voters) controls the determination of constitutionality?

Question 8

True or false: Judicial review is listed in Article III of the Constitution

Answer 8

False.
Judicial Review not provided for in the Constitution

Article III deals with the Judicial Branch. Marbury v. Madison (1803) is where Supreme Court announces its judicial review authority

Question 9

What are the key takeaways from Marbury v. Madison?

Answer 9

1) The Court can only review certain forms of executive conduct
+ Non-discretionary actions separate from political acts or that fall within a specific, identifiable command
+ Ex: State of the Union are ONLY answerable within the political sphere because the only recourse against them are to vote against them

2) Court can review constitutionality of legislative enactments and can go so far as to pronounce the unconstitutional act to be without effect
3) The Court’s own power is limited to what the Constitution prescribes and cannot be increased by Congress
4) Marbury only concerns the federal judiciary NOT whether the SCOTUS can rule on state decisions

Question 10

Can federal courts rule on state court decisions?

Answer 10

YES! Martin v. Hunter’s Lessee & Cohens v. Virginia

Supreme Court can rule on state court decisions

Why does it make sense for the Court to have this power? They are the supreme law of the land

Question 11

What are pros and cons of process theory?

Answer 11

Pros: Good(ish) for minorities

Cons: Minorities will still not prevail sometimes—racially segregated swimming pool, same sex marriage- slow moving; puke test- strong presumption of favor of upholding legislation unless is really bad- only strike down legislature as unconstitutional if makes you want to vomit

Question 12

What are the different constraints on judicial power (aka justiciability doctrines)?

Answer 12

1) Advisory opinions: not allowed
2) Standing: Is this P the property party to bring the issue to court?
3) Ripeness: Too soon?
4) Mootness: Too late?
5) Political Question: inappropriate for review

Question 13

What are the requirements for judicial review where a court CAN hear an argument (thus rendering it NOT an advisory opinion)? Why can’t courts issue advisory opinions?

Answer 13

Judicial Review Requires:

1) Actual dispute b/t adverse litigants beyond burning curiosity of “what might happen if…”
2) Substantial likelihood that a federal court decision in favor of claimant will bring about real world change or effect

Hayburn’s Case (1792): law unconstitutional because recommendations of veteran pension amounts could be ignored by the Secretary of State; recommendations are not of a judicial nature

Plaut v. Spendthrift Farm, Inc. (1995): law unconstitutional because decisions already made by the courts would become null according to the legislature and that’s BAD

Question 14

Are declaratory judgments advisory opinions?

Answer 14

Nashville v. Wallace: Court says declaratory judgment is fine because the matter could have been brought in the form of a request for an injunction and it is the substance that is the issue NOT the procedure/form

Question 15

What are the three requirements for standing? What cases support these requirements?

Answer 15

Injury: Must have occurred or injury must be imminent. Cannot be speculative or hypothetical

Causation: Injury is fairly traceable to D’s conduct

Redressibility: Must allege that favorable court decision is likely to redress P’s injury

PLUS Two major standing principles

1) Generally, P can only raise his/her rights, not the rights of a third party
2) P may not sue a taxpayer sharing a grievance with all other taxpayers

Cases:

1) Allen v. Wright (1984): Lack of standing due to all three requirements
2) Massachusetts v. EPA (2007): Only one of the petitioners needs to have standing
3) City of L.A. v. Lyons (1983): No standing for an injunction
4) Lujan v. Defenders of Wildlife (1992): Future injury too speculative

Question 16

What does ripeness require?

Answer 16

1) Fitness of the issue for judicial decision: Is there enough information for the court to issue a decision? Are issues adequately focused and presented? Court has to know the exact problem.

Is there a benefit to the court to hear the case? Would the court have to gather additional info to make a decision?

2) Delay will cause hardship to P seeking relief. Either will be prosecuted or waste money complying with unconstitutional statute

Court gives criteria for when a plaintiff can obtain pre-enforcement review:

Question 17

What are the requirements for mootness? What are the exceptions and case illustrations?

Answer 17

Requirement: live controversy must exist at every stage of the case because you always have to have an outcome

Exceptions: This could happen again > Timing

1) Wrongs capable of repetition but evading review, injuries of short duration like pregnancy (Roe) or elections (Moore)
2) Voluntary cessation: party is free to resume the harmful actions again in the future (Friends of the Earth)
3) Class action suits (if properly certified). Even if the named plaintiffs claims are moot the case can go on.
4) Collateral injuries remain even though the primary injury is gone

Question 18

Where has the Court invoked the political question?

Answer 18

Electoral process

Foreign affairs

Congress’s ability regulate its internal processes

Process for ratifying constitutional amendments

When federal courts cannot shape effective relief

Impeachment

Question 19

Explain why the Rucho majority involves the debate over political question

Answer 19

Rucho v. Common Cause (2019): Partisan gerrymandering nonjusticiable, political question

+ Gerrymandering has been part of US history for over 200 years
+ Elections Clause gives state legislatures power to regulate how they elect Congressional reps while Congress can make/alter those regulations
+ Does not prevent limited judicial review of electoral issues

+ BUT courts have found political gerrymandering constitutional
+ No law proscribes partisan classifications

+ Justiciability requires an ability to set a definitive standard, which we do not have here – all of the tests used in the past fail

Question 20

True or false: The jurisdiction of federal courts is limited to cases or controversies.

Answer 20

True

Question 21

What is the one exception to the limitation of federal courts hearing cases of diversity/AIC and federal question of law?

Answer 21

11th Amendment and preexisting concept of state sovereign immunity

Question 22

What are the limiting circumstances where an individual could sue a state or federal court?

Answer 22

1. State consents
2. Congress expressly says so to enforce 14th Amendment rights

Question 23

True or false: the 11th amendment exception applies to states, state agencies, and local governments.

Answer 23

Half true, half false. Yes to states and state agencies, no to local governments (i.e., no immunity for cities, counties, or towns)

Question 24

Can Congress force states to pay money damages in a lawsuit where an individual sues for violation of 14th amendment rights?

Answer 24

Yes, BUT ONLY IF expressly says so. Any lack of clarity precludes damages.

Question 25

If a party cannot sue a state due to sovereign immunity, who can they sue?

Answer 25

Injunctive relief—you can always get injunctive relief simply by enjoining the appropriate state officer (e.g., sue the state attorney general)

Question 26

Can a party enjoin a state judge or clerk for violating the state law?

Answer 26

No. The remedy would be filing an appeal.

Question 27

Can an individual sue an officer personally?

Answer 27

Yes, for some kind of constitutional tort.

Question 28

True or false: Damages from the state treasury are permissible.

Answer 28

False. Damages from the state treasury are barred (unless the state consents or Congress expressly says so to enforce individual rights).

Question 29

Define original jurisdiction

Answer 29

A case may be filed first in the Supreme Court (controversies between states, mostly)

Question 30

True or false: The U.S. Supreme court’s granting write of certiorari is discretionary.

Answer 30

True. The Supreme Court is the ONLY federal court that exercises discretionary jurisdiction.

Question 31

How would Congress control the Supreme Court’s docket?

Answer 31

Congress can make exceptions to the Court’s appellate jurisdiction by legislating exceptions to its appellate jurisdiction

Question 32

Define Adequate and Independent State Grounds (AISG)

Answer 32

Arises only in the U.S. Supreme Court, and it arises only when the Supreme Court reviews a state court judgment.

Rule: The Supreme Court can review a state court judgment only if it turned on federal grounds. The Court has no jurisdiction if the judgment below rested on adequate and independent state ground/

Question 33

What is adequate ground under AISG?

Answer 33

Adequate: The state ground must control the decision no matter how a federal issue is decided. AISG shows up when the federal claimant (i.e., the party asserting a federal right) wins anyway under state law.)

Question 34

What is independent ground under AISG?

Answer 34

Independent: The state law does not depend on an interpretation of federal law (e.g., no AISG if state law adopts or follows federal law).

Question 35

True or false: If a state court decision is unclear as to the basis of the decision (i.e., whether it is based on the state constitution or the federal constitution), the Supreme Court cannot review the federal issue

Answer 35

False, it CAN review the federal issue.

Question 36

Standing to sue requires?

Answer 36

RIC: Redressability, Injury, Causation

Question 37

How do we know if injury is present in a standing case?

Answer 37

1) Almost anything can be injury, past or present, especially if Congress says so;
2) Must be concrete (not abstract)
3) Does NOT require economic (ex: freedom impediments are injury)
4) Mere objection, no matter how strong, is not injury

Question 38

An organization has standing when

Answer 38

At least one individual member has standing

Question 39

What is the test for causation in a standing case?

Answer 39

Test: Defendant’s conduct has caused or will cause the injury.

Question 40

How is redressability defined?

Answer 40

A court can remedy or redress the injury.

Question 41

What are the different remedies the court can grant if a party has been injured by the defendant?

Answer 41

If the injury is in the past, the remedy is damages
If future injury is threatened, the remedy is an injunction

Note: To get an injunction, you must show the prospect that it will happen again.

Question 42

True or false: Taxpayers have standing to challenge government expenditures.

Answer 42

False. Although Federal taxpayers always have standing to challenge their own tax liability, taxpayers do not have standing to challenge government expenditures (no injury).

Individual tax liability stays the same, no matter how the gov spends their budgets

Question 43

What is the narrow exception to taxpayers challenging government spending (and standing)?

Answer 43

Narrow exception under the Establishment Clause: An establishment of religion challenge to specific congressional appropriations can be raised by any taxpayer. No other constitutional right of tax $ can be challenged.

BUT state courts do often allow taxpayers to challenge a municipality’s expenditures.

Question 44

Do legislators have standing to challenge laws they voted against?

Answer 44

No. BUT in some circumstances, the legislature itself as a body may have standing, if the claim concerns its institutional functions.

• Occasional legislatURE standing, but not legislaTOR standing

Question 45

Explain the difference b/t ripeness and mootness

Answer 45

Ripeness concerns prematurity of a case. Must show actual harm or an imminent threat of harm (mere possibility = not enoguh)

Mootness cases are overripe and dismissed whenever they become moot. Judgement below is dismissed as if it never happened.

Question 46

What is the one exception to mootness?

Answer 46

Cases capable of repetition, yet evading review.