Con Law Chemerinsky - Constitutional Law Outline PDF

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CONSTITUTIONAL LAW | SPRING 2018 | Keyed to Chemerinsky 5th Edition *This outline is VERY case heavy and covers almost all the cases in the first 3 chapters of the book, including squib cases. 1. Judicial Power a. Judicial Review b. Interpretive Limits c. Congressional Limits d. Justiciability Limits 2. Executive Power a. Foreign Affairs b. Domestic Affairs c. War Powers d. Impeachment/Getting Sued 3. Congressional Power a. Commerce Power b. Suits Against States c. 14th Amendment d. Civil Rights Amendments 4. Preemption 5. Dormant Commerce Clause THE FEDERAL JUDICIAL POWER The Authority for Judicial Review →The Source of Federal Judicial Power: Article III, Section 1 provides that “the judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.” →The Scope of Federal Judicial Power: Article III, Section 2 limits the jx of the federal courts to: ➢ Cases, in law and equity, arising under the U.S. Constitution, federal law, and treaties, ➢ Cases affecting ambassadors, public ministers, and consuls, ➢ Cases of admiralty and maritime jdx, ➢ Controversies in which the United States is a party; ➢ Controversies between two or more states, ➢ Cases between a state and a citizen of another state, and ➢ Cases between citizens of different states (diversity of citizenship). → ORIGINAL JURISDICTION: The Supreme Court’s power to be the initial court to hear certain types of cases. Under Article III of the Constitution, the Supreme Court has original jurisdiction of all cases affecting ambassadors, other public ministers and consuls, and cases in which a state is a party. [“...in all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party.”] → APPELLATE JURISDICTION: The Supreme Court’s power to review decisions of other courts. Article III of the Constitution gives the Supreme Court appellate jurisdiction of, among other cases, all cases arising under the Constitution, laws, and treaties of the United States. • Exceptions and Regulations Clause o Congress cannot enlarge or restrict the Supreme Court’s original jurisdiction (Marbury v. Madison). o Congress can expand or limit the Supreme Court’s appellate jurisdiction by passing relevant legislation. Congress can also create and regulate the jurisdiction of the lower federal courts, subject to the power and limitations set forth in Articles I and III. (Example: Judiciary Act of 1789) FEDERALISM: Federalism is the vertical allocation of power between the federal government and the states. The Constitution is structured so that each branch of government has defined powers that may not be encroached on by other branches, with a set of checks built in to keep any one branch from usurping too much authority, or ‘aggrandize itself at the expense of the other branches.’ (See The Federalist No. 49). COUNTER-MAJORITARIAN RULE (perceived problem with judicial review of legislative (or popularly created laws)): Marbury was a massively important contribution to jurisprudence, but it also raises an important question about the 1 of 86

CONSTITUTIONAL LAW | SPRING 2018 | Keyed to Chemerinsky 5th Edition antidemocratic nature of a court of unelected judges invalidating the act of a democratically elected legislature. This is referred to as the counter-majoritarian difficulty. The judiciary is meant to function as an independent check on the democratic arms of government. Article II gives the president the authority to appoint federal judges, with the advice and consent of the senate. Those judges, at all levels of the federal court system, are given lifetime appointments with removal only for bad behavior. Judges are meant to be immune to the impulses of the majority. LAST-IN-TIME RULE: The last in time rule makes clear that where two statutes or a treaty and a statute conflict, the one last enacted will prevail. → ARTICLE III ➢ Section 1: creates Supreme Court ➢ Section 2: defines judicial power o Cases “arising under” federal law o Admiralty o Controversies b/w states o Diversity jurisdiction o Foreign state or citizens •

Marbury v. Madison (1803) [Page 2] o TOPIC: Power of JR. Authority for judicial review. o FACTS: William Marbury (P) was appointed as a justice of the peace at the very end of John Adams’ presidency. Thomas Jefferson, the incoming president, chose to disregard the appointments because formal commissions had not been delivered before the end of Adams’ term. Marbury (P) and others took their case to the Supreme Court, seeking a writ of mandamus [order directing that an official perform an act] that would order Madison (D), Jefferson’s Secretary of State, to deliver the commissions. John Marshall was Secretary of State under Adams, but had since been appointed Chief Justice of the Supreme Court by the time the Court heard the case. o RULE: Under Marbury v. Madison, federal courts have the authority to review acts of Congress and the Executive Branch (executive orders, but not veto’s of a bill or appointees) and they have the power to invalidate those acts that violate the Constitution. o ANALYSIS: Marbury does 3 things: 1). Creates authority for judicial review; 2). Establishes that Art. III is the ceiling of federal court jx (Congress cannot expand this); and 3). Establishes the authority for judicial review of legislative/executive acts and the ability to rule them unconstitutional ▪ Declared §13 of the Judiciary Act of 1789 (which granted the Supreme Court power to issue writs of mandamus to all persons holding office in the US) conflicted with Art. III and was unconstitutional. ▪ Chief Justice Marshall: It is inherent to the judicial role to decide the constitutionality of the laws that it applies. “It is emphatically the province and duty of the judicial department to say what the law is.” ▪ Borrows language from Fed. No. 78: The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. ▪ 3 questions: (1) Does Marbury have a right to the commission? (2) If he has a right, and his right to the commission has been violated, do the laws afford Marbury a remedy? (3) Can the Supreme Court issue this remedy? Is mandamus an appropriate remedy? • (1) Marbury had a right to the commission because all appropriate procedures were followed. o “It is … decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the Secretary of State . . . To withhold the commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.” • (2) Yes. The judiciary could provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion. o “[W]here the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.” 2 of 86

CONSTITUTIONAL LAW | SPRING 2018 | Keyed to Chemerinsky 5th Edition (3) Yes, the Supreme Court can issue this remedy. Some matters—such as whether to veto a bill or whom to appoint for an office—are entirely within the president's discretion and cannot be judicially reviewed. But where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus. o BUT: grant of original jurisdiction by §13 of the Judiciary Act of 1789 was unconstitutional. • In resolving the question, Marshall effectively defined judicial review: “It is emphatically the province and 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 that rule. If two laws conflict with each other, the courts must decide on the operation of each.” Further, “A law repugnant to the Constitution is void.” * Remember that Article III grants og jx in “Cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be a party.” * The canon of constitutional avoidance says that when a statute may be reasonably interpreted in more than one way, courts should choose the construction that avoids raising a constitutional question. •

→ Supreme Court can review state decisions; established by 2 early 19th century cases Rule: Under Article III of the United States Constitution, the United States Supreme Court has authority to exercise appellate review of state court decisions (Martin v. Hunter’s Lessee [land dispute case] and Cohens v. Virginia [holding criminal defendants can seek Supreme Court review on claims that their convictions are unconstitutional]). Note: This is an example of appellate jurisdiction that cannot be limited by Congress. •

*Martin v. Hunter’s Lessee (1816) [Page 10] o TOPIC: Power of JR. Authority for Supreme Court to review state court judgments. o FACTS: Virginia confiscated land owned by Martin (P), a British subject, and granted it to Hunter. Martin (P) claimed the confiscation was ineffective under treaties between the United States and England. The Virginia Court of Appeals held in favor of Hunter’s Lessee (D), and the United States Supreme Court reversed and remanded with instructions to enter judgment in favor of Martin (P). The Virginia court refused to comply with the Supreme Court’s order on remand, finding § 25 of the Judiciary Act [authorizes the Supreme Court’s exercise of appellate jurisdiction over cases pending in state courts] unconstitutional because it placed the courts of one sovereign under the direct control of another. o RULE: Under Martin v. Hunter’s Lessee, the constitution permits the Supreme Court to exercise appellate jurisdiction over cases pending in state courts. o ANALYSIS: Justice Story explained the importance of Supreme Court review of state courts. Justice Story said that although he assumed that “judges of the state courts are, and always will be, of as much learning, integrity, and wisdom as those of courts of the United States,” the Constitution is based on a recognition that “state attachments, state prejudices, state jealousies, and state interests might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice.” ▪ If the Supreme Court did not have this power, then they would be powerless to hear any cases, except for the few which fit its OG.

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*Cohens v. Virginia (1821) [Page 11] o TOPIC: Power of JR. Reaffirmed Supreme Court can review state court judgments/states can’t be trusted to protect federal rights so Supreme Court can review when individuals think their Constitutional rights are violated. o FACTS: Two brothers were convicted in Virginia state court of selling District of Columbia lottery tickets in violation of Virginia law. The DFDs sought review in the SCOTUS because they claimed the Constitution prevented their prosecution for selling tickets authorized by Congress. Virginia argued: (1) in general, the Supreme Court had no authority to review state court decisions; and (2) in particular, review was not allowed in criminal cases and in cases where a state government was a party. o RULE: Under Cohens v. Virginia, the Supreme Court reaffirmed the constitutionality of §25 of the Judiciary Act and the authority of the Supreme Court to review state court judgments. o ANALYSIS: The Court emphasized that state courts often could not be trusted to adequately protect federal rights because “[i]n many States the judges are dependent for office and for salary on the will of the legislature.” The 3 of 86

CONSTITUTIONAL LAW | SPRING 2018 | Keyed to Chemerinsky 5th Edition Court thus declared that criminal defendants could seek Supreme Court review when they claimed that their conviction violated the Constitution. State Jurisdiction ➢ To avoid federal review: o Must “clearly and expressly” state o Wholly based on state law ➢ Supreme Court can only hear case after o Ruling by highest state court, or o Party has exhausted all state remedies ➢ May hear federal cases for comity (The legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts. The underlying notion is that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect.) ➢ Judiciary Act of 1789, §25 o Three criteria for Supreme Court jurisdiction over state court judgment on appeal: ▪ The validity of a federal statute or state action must be drawn into question, or the construction of a federal law is at issue such that the state court’s construction has drawn a federal privilege or right into question; ▪ The federal law or state action must be drawn into question on grounds that it is repugnant to the constitution, treaties and laws of the United States. ▪ The decision of the state court must be against the validity of the federal law or in favor of the validity of the state action, or its construction of a federal law must be against a privilege or right under the federal law. o Notes about §25 ▪ No general federal question jurisdiction granted to lower federal courts until 1875. ▪ Even some federal issues excluded from Supreme Court review when the state “over-vindicated” the claim. ▪ Review at the instance of either side of federal issues was not clearly available until 1914. ▪ A state may challenge the constitutionality of a federal statute by filing a lawsuit in court seeking to declare the federal law unconstitutional. Such a lawsuit is decided by the courts, with the Supreme Court having final jurisdiction. (Nullification) • Technically, any court can issue a ruling that a law is unconstitutional. That ruling would serve as binding precedent within the jurisdiction of that court. However, the only court that has the ultimate, binding say on the matter is the U.S. Supreme Court for national constitutional matters, or the individual State Supreme Courts for state constitutional matters. Limits on the Federal Judicial Power → Interpretive Limits: How should the Constitution be interpreted? Static – Originalism; Dynamic – Non-Originalism ➢ Originalism: judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution. [Narrow judicial power] ➢ Non-Originalism: the view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document, since the Constitution should evolve [Broad judicial power] ➢ Judiciary Act of 1789, §25: Three criteria for Supreme Court jurisdiction over state court judgment on appeal: o The validity of a federal statute or state action must be drawn into question, or the construction of a federal law is at issue such that the state court’s construction has drawn a federal privilege or right into question; o The federal law or state action must be drawn into question on grounds that it is repugnant to the constitution, treaties and laws of the United States. o The decision of the state court must be against the validity of the federal law or in favor of the validity of the state action, or its construction of a federal law must be against a privilege or right under the federal law. 4 of 86

CONSTITUTIONAL LAW | SPRING 2018 | Keyed to Chemerinsky 5th Edition • District of Columbia v. Heller (2008) [Page 13] o TOPIC: Limitations on JR. Interpretative limits: clauses in a Const. Amend. must be read together o FACTS: District of Columbia (D) ordinances essentially prohibited the possession of handguns. In addition, no person could carry a handgun without a license, but the Chief of Police was authorized to issue licenses for one-year periods. Guns kept in a person’s home were required to be stored in a way that made them inoperable. Heller (P) was a District of Columbia special police officer. He was authorized to carry a handgun while on duty at the Federal Judicial Center. Heller (P) applied to register a handgun to keep at home, but the District (D) refused. Heller (P) then filed suit in the district court seeking to enjoin the District (D) from enforcing its gun laws on Second Amendment grounds. o RULE: Words and phrases in the Constitution are to be interpreted according to their normal and ordinary meanings as understood when the provision in question was adopted. o ANALYSIS: Justice Scalia, writing for the majority, relies on a historical interpretation to determine the original intent of the Second Amendment. Justice Stevens would rely more heavily on precedent. Justice Breyer would emphasize deference to the judgment of the legislature. ▪ So which approach should you take? Operative and prefatory clauses read together or separately? Context? Intent of the framers? The history of the time? Words having different meanings over time? ▪ Prefatory clause – announces a purpose; operative clause – the function, the rule having effect → Congressional Limits: The ability for Congress to restrict federal court jurisdiction Issue: May Congress strip the jurisdiction of the court? Rule: In cases that don’t affect ambassadors, other public ministers and consuls, and those where a state is a party, the court’s appellate jurisdiction is limited to the exceptions and regulations that Congress makes. Congressional Checks to Judicial Power ➢ Congress can create or abolish ➢ Congress decides types of cases o But may not expand beyond constitutional limits as outlined in Art. III ➢ Removal of judges ➢ Impeachment power SEPARATION OF POWERS AS A LIMIT: • Rule: Based on the principle of separation of powers in the United States Constitution, the legislative branch may not impair or direct the exclusive powers of the judicial or executive branches (United States v. Klein [legislative enactment requiring the Supreme Court to find that it had no jx if it found that a plaintiff was entitled to property rights on a presidential pardon]. • Marcozzi- limits Klein by saying that Congress can change the statutory basis of a decision, but it cannot change the rules of statutory interpretation. • Rule: Congress may not pass retroactive legislation that has the effect of forcing the courts to reopen final judgments, as this violates the separation of powers in the Constitution (Plaut v. Spendthrift). → ART III’s Exceptions and Regulations Clause – What does it mean? ➢ “Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” ➢ Argument: If Congress has broad powers to remove matters from SCOTUS scope of influence? o Check on judiciary power o Congress didn’t vest SCOTUS with appellate jx over all types of cases ➢ Argument: If Congress is limited in its ability to control SCOTUS jx? o Framers concerned about SCOTUS ability to overturn fact-finding by lower courts. o Congress can create exception to SCOTUS jurisdiction re: matters of fact, but can’t eliminate SCOTUS jurisdiction re: matters of law ➢ Congress can only limit SCOTUS jx in so far as Article III allows! (Could it be that the separation of powers limits the ability of Congress to restrict SCOTUS jx?” 5 of 86

CONSTITUTIONAL LAW | SPRING 2018 | Keyed to Chemerinsky 5th Edition HABEAS CORPUS: A judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. Latin for “you have the b...