Constitutional Law Outline- GW Law -2021 PDF

Preview

Summary

No, I don't feel like giving more of a description. No one reads the description. No, I don't feel like giving more of a description. No one reads the description...

Description

Constitutional Law Outline Marbury v. Madison- Judicial Review 1. In final days as POTUS, John Adams appoints Federalists to these newly created judicial positions (including Marbury). Secretary of State John Marshall (who decides this case!) signed commissions of Marbury (and others) in the closing hours of John Adams’s presidency. When he becomes POTUS, Thomas Jefferson orders that the remaining commissions (including Marbury’s) not be delivered. 2. Pursuant to Section 13 of the Judiciary Act of 1789, Marbury seeks a writ of mandamus directing Thomas Jefferson’s Secretary of State, John Marshall, to deliver his commission. a. Even though Marbury may have a strong case on the merits… there is a problem with his claim and they talk about jurisdiction. i. Section 13 of the Judiciary Act of 1789 is in conflict with Article III, Section 2 of the U.S. Constitution. 1. Article III, Section 2 says types of claims Supreme Court has original jurisdiction over. This situation is not one of them. 2. Section 13 of the Judiciary Act of 1789 provides another way to have original jurisdiction, and Marshall says this is not allowed. ii. However, there is an argument this statute is not in conflict with Article III. 1. Marshall interprets the Judiciary Act as granting the Supreme Court original jurisdiction, even though it could have been interpreted just to give the Supreme Court the ability to issue a new remedy (the writ of mandamus) 2. Marshall says the listing of specific fonts of original jurisdiction in Article III is meant to be exclusive; but Article III has no limiting words 3. Marbury v. Madison key takeaways a. U.S. Government must be based upon the rule of law  SCOTUS adheres to Article III even when it costs the Supreme Court receiving more jurisdiction. i. If we are not going to follow Constitution, then what are we? b. U.S. Constitution is the Supreme Law of the Land (Article VI)  Congress can’t pass laws that conflict i. Even when it might give SCOTUS more power c. The holding solidifies that the Judiciary has the power of judicial review, even though Article III doesn’t actually say this  SCOTUS may review law passed by Congress to determine whether the law is consistent with the U.S. Constitution. i. Bold move because Congress, who passed this act, basically wrote the U.S. Constitution. ii. When a court is asked to apply a particular law to the case before it, the court may also look behind the law to determine whether the legislature had the constitutional authority to enact it. iii. Can also review executive branch actions

iv. Nothing in the text of the Constitution explicitly gives the federal courts the authority to invalidate actions taken by the other branches. v. Chief Justice Marshall says that judges take oaths so they get to determine; but so do the President and members of Congress vi. Chief Justice Marshall says that courts have a kind of special expertise about the law and the Constitution vii. Chief Justice Marshall says this is just what courts do; that they apply the law in cases before them, and the Constitution is law d. Marshall says that because constitutions are, after all, constitutions, they trump any inconsistent statutes, because otherwise a constitution would just be a statute; he also indicates that because Article VI mentions the Constitution first, and as “the supreme Law of the land,” that means the Constitution is the highest source of law 4. More Marbury v. Madison points a. Any wrong he has suffered, can the court resolve a remedy? Political Question Doctrine. Marshall says yes. b. On the language of Article III, does the court have the right to hear Marbury v. Madison? No c. Was the Judiciary Act meant to give the Supreme Court extra original jurisdiction? No- off-ramp. Can Congress do this? No d. Part III- appellate jurisdiction  off-ramp e. Conflict between Statute and Constitution- Article VI- Supremacy Clause. i. Law of the Land 1. Constitution 2. U.S. laws (which shall be made in pursuance of the Constitution) 3. Treaties ii. Doesn’t matter whether it’s state or federal law, but Supreme Court has adhered to principle that it will not review state court rulings on issues of state law. iii. However, “in pursuance thereof” assumes it means law are meant to be made in accordance with the Constitution. However, it could mean laws just need to be made in accordance with the procedures laid out in Article I. f. Exceptions Clause- Marshall said this allows Congress to remove cases from the Court’s appellate jurisdiction, but does not permit cases to be moved from the appellate to the original jurisdiction category. g. Nothing in the text of the Constitution explicitly gives the federal courts the authority to invalidate actions taken by the other branches. h. Marshall relied on Article III, Section 2, which states that the federal judiciary, including the Supreme Court’s appellate jurisdiction, extends to cases arising under the Constitution. i. However, this language does not conclusively prove that federal courts are entitled to review the constitutionality of actions taken by Congress and the President. The founders may simply have intended that the federal courts should be able to hear challenges to the validity of state laws and practices. There is nothing specifically indicating that the federal judiciary

was authorized to review the validity of conduct undertaken by the coequal federal branches. i. Marbury proclaimed the sweeping principle that federal courts may review and invalidate acts of Congress under any provision of the Constitution, including provisions that are not specifically addressed to the courts. Marshall’s decision was ok because the provision addressed the courts, but this extended to everything. j. Marshall said judicial review is supported by Article VI, Clause 3, which requires judges take an oath “to support this Constitution,” because judges cannot honor unconstitutional law. i. Strongest argument against judicial review. However, since the Constitution imposes the same oath on Congress and the executive, the Oath Clause seems to contemplate a system where each branch assesses the constitutionality of it’s own actions. k. Marshall should’ve recused himself in this case. 5. Who gets to determine if a statute is incompatible with the Constitution? a. Marshall: judges take oaths to uphold Constitution, which gives them unique power/responsibility to interpret it i. Courts have a kind of special expertise about the law and Constitution ii. Courts apply the law in cases before them, and the Constitution is law. iii. “It is empathetically the province and duty of the judiciary to say what the law is” b. Weakness of this view: i. Congress is not neutral because they write the laws, but SCOTUS also has institutional stake in how this case and others are resolved. ii. Silence: was judicial review so obvious that it didn’t need to be mentioned in the Constitution? Or did Founders not intend it? iii. Timing: Same people who wrote Constitution wrote the Judiciary Act of 1789, so we can infer constitutionality. What is Proper Role of Courts in Interpreting the Constitution? 1. Pro Judicial Review a. Checking the other branches of government i. Judges are unelected and unaccountable, and therefore can counterbalance the activities of elected officials. Neutral forum to resolve heated issues ii. But who checks courts? What if courts make a mistake? Concern of judicial supremacy b. Participation/Equality i. Because everyone gets to have their day in court, regardless of their political affiliation or status or anything else, courts permit the powerless to have a voice in our system ii. But courts feature the same inequalities that the other branches of government do (e.g., better or more attorneys or resources) 2. Against Judicial Review a. Undemocratic

i. Judges are unelected, and in our democratic system that means they should not exercise power (e.g., the statement by President Obama) ii. But perhaps courts are not so undemocratic (they are well known and appointed by political officials) and the other branches of government are not so democratic b. Debilitation i. Because courts take it upon themselves to review and decide constitutional issues, other branches of government will not because they have no incentive to think about the Constitution c. Distortion i. Because courts talk about and decide issues using a specialized and technical language, it warps the way that other branches of government think about and decide issues ii. We've decided to resolve our biggest societal disputes via lawyers, in ways only lawyers can understand Judicial Power Cooper v. Aaron- Judicial Finality and Exclusivity 1. Whereas there were no strong disagreements, there was a disagreement in this case between federal and state government. 2. Integration of Little Rock, AR public schools. People are defying the Constitution by not integrating 3. Issue: are state court officials bound by the U.S. Constitution? Does the Supreme Court have a final say over everybody? a. Supremacy Clause- Constitution rules. But who has final ruling? Supremacy Clause doesn’t say SCOTUS has the final ruling. 4. Two parts of the government are interpreting the Constitution differently; 9 unelected judges saying they have final authority. 5. Marbury is the but-for cause of Cooper. a. Marbury  agreement on the issue b. Cooper  disagreement on the issue 6. Issue comes from vagueness and ambiguity in the Constitution. a. Need someone to understand how it works 7. Judicial review causes other branches to handle the Constitution irresponsibly because everyone else knows SCOTUS will say what is constitutional or not 8. What if Cooper v. Aaron was ruled the other way? Could’ve said the Supreme Court is important, but not final. 9. Could say the Supreme Court is final of the narrow extent of issues it decides and that Cooper v. Aaron is different from previous cases. 10. Arguments in favor of judicial finality a. Article VI and Supremacy Clause: Constitution is the “supreme law of the land”—but does this mean that judicial interpretations of the Constitution are the supreme law of the land? Doesn’t this violate the idea of checks and balances and separation of powers?

b. Article III: Is this what the language about “judicial power” and “cases and controversies” mean? That courts settle cases, and with finality? c. What happens if there is no single institution that is final in its interpretations of the Constitution? Does that invite chaos? 11. Arguments against judicial finality a. Who checks the checkers? As citizens, what do we do if we're unhappy with a court decision? Constitutional amendment, impeaching a justice (although ruling would still stand), could try legislative override, vote for a president that will appoint good new justices, convince court that it was wrong, because sometimes it repudiates itself 12. Why no revolt against Cooper? a. Tough to amend the Constitution b. Citizens love the courts c. Who would we give the power to instead? Standing- what makes American courts uniquely powerful 1. Rule in federal courts, but not all courts require standing 2. Resolve cases and controversies  there needs to be a wrong 3. For justice: gap between rights and the power to remedy someone whose rights have been violated. Ex: can’t act for someone who can’t have an abortion 4. Requirements a. Injury in fact- need to know people affected by decisions i. Concrete ii. Particularized- not everybody can suffer it iii. Actual or imminent- person has already suffered or almost definitely will soon 1. Ripeness- can’t be too early (must have already suffered the harm) 2. Mootness- can’t be too late (must still affect P) b. Causation- did the person you sue cause the harm? c. Redressability- can the court fix it? Timing must be right 5. Origins of requirement a. Article III, Section 2: language about “cases” and “controversies” b. Litigation floodgates opening c. Facts help courts better understand issues in federal cases i. A court can step in to fix a constitutional harm ONLY IF there is the right plaintiff to bring a lawsuit. ii. Note: standing is a jurisdictional matter, so to dismiss for lack of standing you should use 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. 6. ACLU v. NSA a. Terrorist surveillance program- 1 person has to be overseas b. They don’t know they are being wiretapped c. What’s the injury if being wiretapped? Violation of privacy d. Need standing at every stage of the case. If standing goes away, then your case goes away.

e. If you create this program and it’s very secret, you can do it. Also could be easy if you didn’t individualize targeting f. Defendants might not want evidence to come up in court. 7. Is there probabilistic standing? a. If you don't know you're being wiretapped, you might be able to get probabilistic standing if you have strong suspicion of it. Hard to determine what is enough, though. Or else need to show actual harm, like chilling effect on communications b. Is it enough to suspect harm? c. Is the increased potential for harm itself a sufficient harm? d. If you don't have to show actual harm but can show probable past harm, what about probable future harm? i. Some things, like pregnancy, are "Capable of repetition yet evading review" ii. Not sure I understand this 8. Standing empowers lawyers- why facts matter a. Good selection of clients b. Lawyers shape facts of the case. c. Creates barriers to courts fixing big problems. Congressional Control of Supreme Court Jurisdiction: 1. Issue: Can Congress limit SCOTUS's power by taking from or adding to its appellate jurisdiction? 2. Article III, section 2: SCOTUS has "original jurisdiction in cases affecting ambassadors, other public ministers and consuls, and those in which State is a party. In all other cases, appellate jurisdiction, with such Exceptions and under such Regulations as Congress shall make." 3. Holding: Congress cannot generally alter the original jurisdiction of the Supreme Court (Marbury), and Congress' repeal of its amendment took away SCOTUS' jurisdiction here a. Congress has the power to make “Exceptions . . . and . . . Regulations” to the Court’s appellate jurisdiction - here Congress exercised its power to take away SCOTUS' jurisdiction. Traditional/plenary interpretation of Exceptions Clause. b. This gives Congress broad power to alter the Court’s ability to hear cases, and strip it of appellate jurisdiction even in middle of case. i. Note that Congress rarely does this, and they can't step in after case and strip Court of jurisdiction, b/c Cooper says Court has final power to interpret Constitution. 4. 2 views of Congressional power to limit SCOTUS jurisdiction and Exceptions clause a. Traditional plenary power - McCardle - Congress has great discretion to make exceptions to SCOTUS' appellate jurisdiction (can withdraw subject matters) b. "Mandatory" interpretation - there must be at least one federal court with jurisdiction to hear every case, so Exceptions clause is very limited Political Question Doctrine- Baker v. Carr 1. Comes from Separation of Powers Doctrine, “cases and controversies” in Article III 2. Baker v. Carr- What is the test for political questions?

a. a textually demonstrable constitutional commitment of the issue to a coordinate political department b. or a lack of judicially discoverable and manageable standards for resolving it c. or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion d. or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government e. or an unusual need for unquestioning adherence to a political decision already made f. or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 3. What if you disagree with the Court’s decision about what constitutes a political question? a. If this a constitutionally-derived doctrine, then after Cooper you can’t pass a statute overturning this decision; you could amend the Constitution; but, more likely than not, courts get to make decisions about their own powers that are final b. Political question doctrine creates a gap between rights and remedies 4. Rucho v. Common Cause a. Gerrymandering- too partisan b. What next? What doors are closed and opened re: partisan gerrymandering? c. Could you challenge in a lower federal court? No, federal courts can’t do that Supreme Court said Constitution says they can’t. d. Can Congress pass a law saying federal courts can hear this case? No, Supreme Court says they interpret it. (Cooper v. Aason) e. Legislators can fix it, state courts can fix it. f. Difference between different types of gerrymandering. Supreme Court Review of State Court Judgments: Martin v. Hunter’s Lessee 1. Facts: a. Property issue: Hunter is claiming land for Virginia; Martin is claiming land for UK; from Lord Fairfax b/c he was loyalist during Rev. b. Virginia court didn't want to follow SCOTUS' finding for Martin (that his title is protected under federal treaty provisions) c. Court says its appellate (not original) jurisdiction here comes from Section 25 of Judiciary Act d. "Final judgment/decree in any suit...may be re-examined and reversed or affirmed in SCOTUS upon a writ of error." 2. Issue: Can Congress give SCOTUS appellate jurisdiction to review and reverse the federal law decisions of state courts? Is Section 25 of Judiciary Act unconstitutional? a. Similar to constitutional issue in Marbury: Was SCOTUS allowed to issue writ of mandamus that Congress gave it in cases of original jurisdiction? Different from Marbury b/c that said Congress couldn't expand Court's original jurisdiction. Martin examines appellate jurisdiction. 3. Justice Story’s Opinion a. Article III

i. Article III contemplates a world in which there are no lower federal courts, and Article III states that “the Supreme Court shall have appellate jurisdiction” in certain cases, so where else would the Supreme Court hear appeals from but state courts? ii. Congress has the authority to add to and take away SCOTUS' appellate jurisdiction. b. Article VI i. Article VI says “judges in every state shall be bound” - Supremacy Clause singles out state courts, which implies that they have a special obligation to follow the Constitution (and therefore SCOTUS, b/c of Cooper) 4. But what about the Cooper problem that just because another institution beyond the Supreme Court is bound by the Constitution does not mean that the Supreme Court gets to tell that other institution what the Constitution means—can state courts decide this for themselves? a. State Judges Are Biased i. They have local interests and passions at heart; but so do federal judges because their Senators have to support them ii. Now, though, they are elected, and federal judges are not iii. Counter-argument: 1. Federalism: states need their own power too 2. State courts saw problems with Marbury and Cooper undemocratic a. Most state judges are elected, thus accountable to the ppl b. The Need for Uniformity i. If state courts and federal courts could interpret the Constitution, and neither interpretation would be final, the Constitution would mean 51 different things ii. But with thousands of cases in federal courts now, and many more in state courts, and with the Supreme Court only taking very few cases, there are uniformity problems even with (discretionary) Supreme Court review after Martin 5. Can Congress get rid of all federal courts except SCOTUS? Implied in power to establish them? a. Article III: "the judicial power of the US shall be vested in one Supreme court, and in such inferior courts as the Congress MAY from time to time ordain and establish" - so Congress can make lower federal courts but doesn't have to. Which means it's possible that SCOTUS would be the only way to review state court decisions. 6. 2 impt caveats: a. SCOTUS still decides which cases to hear. MAY language, not SHALL. SCOTUS only hears a few dozen cases each year. So it's actually rare that SCOTUS steps in to review a state court case. It CAN get involved, but given the volume of state court cases, it rarely does. Federalism 1. 5 Arguments for system of federalism: (Brand...