Pg 7 Flashcards
What is involved in the consideration for source of power as a preliminary step to a con law essay?
Whenever the government [federal, state, or local] acts, it must have a constitutional source of power authorizing that act.
What is the source of power for the federal government and for state governments?
Fed government: enumerated powers
• Congress: article I
• Executive branch/president: article II
• Federal courts: article III
State government: General police powers from the 10th amendment that allow the state to enact regulations for the benefit of its residents
• 10th: all powers not expressly delegated to the federal government are reserved to the states.
• police powers: authority to pass laws for the health, safety, welfare, and morals of its citizens
What is all of the initial stuff that you should discuss on a con law essay before you get into the substance?
Case and controversy, timeliness, standing, justiciability, source of power
What are the things that fall under subject matter limitations?
This asks what constitutional questions can be litigated to federal court, and includes:
– Political question doctrine
- Adequate and independent state grounds
What is political question doctrine?
If the dispute is committed to other branches of the government, then it is not in the federal court’s power to resolve. Courts will not hear cases that present political questions. They can still hear cases about controversial issues like abortion, or politically important topics.
Federal courts do not decide cases that deal directly with issues that the constitution makes the sole responsibility of other branches of government. I.e.: the conduct of foreign relations is the executive branch’s domain.
The idea here is that certain things are actually political and therefore are best resolved by a different branch of government besides the judiciary. The court will then hold that the subject matter is inappropriate for judicial consideration
What is the rationale behind the political question doctrine?
Certain topics are not justiciable because of the separation of powers within the federal government. The judiciary is not the overseer of the US government
What are examples of things that are always dismissed because they are non-judiciable political questions?
– Republican form of government clause
- challenges to the president’s conduct regarding foreign policy
– challenges to impeachment or the removal process
– challenges to partisan gerrymandering
– guarantee clause issues
Is it possible for a federal court to reject a real controversy about whether an action exceeded constitutional limitations simply because it involved a political question?
No
If a political question is involved, what must the courts do?
They MUST dismiss the case regardless of how compelling the claim is. Although just because the case touches the political process doesn’t necessarily create a political question that is beyond the court’s jurisdiction.
What is a particular time that courts should be very reluctant to apply the political question doctrine?
When it involves questions of individual liberty. If important individual rights are involved, the political question doctrine is not applied. This includes things involved in the bill of rights
How do you discuss political question doctrine on an essay?
Use the Baker test to determine if the action should be dismissed because one of the following is present:
– textually demonstrable constitutional commitment of the issue to a coordinate political department
– lack of judicially discoverable and manageable standards to resolve the issue
– impossibility of deciding without an initial policy determination of a kind that is clearly for non-judicial discretion
– impossibility of courts undertaking independent resolution without expressing lack of respect due to a coordinate branch of government
– unusual need for unquestioning adherence to political decision already made
– potential for embarrassment for multifarious pronouncement by various departments on one question
What is involved in adequate and independent state grounds?
If the state courts base their decision on state law that is independent of federal issues and adequate to support judgment, then the Supreme Court does not have authority to review it.
The Supreme court can only review state judgements if they have incorrectly adjudged federal rights. The state court is the final arbiter of what its own state constitution means
If a state court decision relied on a mix of federal and state law, can that be considered to be adequate and independent state grounds?
No, so the federal court would have power to review it.
If it isn’t clear whether the state court relied only on state grounds, how do you determine if adequate and independent state grounds apply?
Look at what fairly appears to have happened. The court accepts the most reasonable explanation that the state court decided the case the way it did because it thought the federal law required them to do it.
If a state law incorporates federal laws by reference, can the Supreme Court review it?
Yes because the state is relying on federal law to adjudicate rights (not purely on state law)
