CONLAW TOME

Random examples of Polit Qs

"Try" in Senate; Republican form of gov/Guaranty clause; True foreign affairs or military actions; Impeachment proceedings; Seating of delegates at a nat'l polit convention; Election and qualification of members of Cong if an expulsion; Procedures to amend Const (bc they often overturn a ct decision; partisan gerrymandering if not bc of clear racial, eq protec basis (state law may allow a state supreme court challenge) (Justice Kennedy thinks there could be review)

How can SCOTUS review a decision from a state court?

"when a litigant petitions the U.S. Supreme Court to review the judgment of a state court which rests upon both federal and non-federal (state) law, the U.S. Supreme Court does not have jurisdiction over the case if the state ground is (1) "adequate" to support the judgment, and (2) "independent" of federal law." Requires: 1. federal issue 2. final state judgment, independent and adequate state grounds (aka if outcome of case same under state law then it doesn't matter what the Fed law/issue is; if death penalty unconst in state, apply the same in SCOTUS) —--SCOTUS can't review state court determinations of purely state law

Taxpayer standing

(a little bit): -gov took action/law and you dislike it-no standing even if don't want tax dollars going to it -on local level, can; not at Fed level -Cath private school parents lobbying to get $ to help pay tuition bc still have to pay taxes for pub schools their kids don't attend (Estab Clause viol suit) -no one could sue til SC invented Flast v Cohen: -Double Nexus test for taxpayer standing: Challenge taxing/spending action 2. Exceed a specific limit on taxing/spending from Const (only ever recog Estab Clause) -now, only taxpayer suits for this purpose Citizens United v Valley Forge Xian College: gov gave property, but denied standing bc property pwr, not tax/spend, exec domain

Jurisdictional Limitations on Judicial Review

-Cong not required to make lower courts; can define jurisdiction -SC certiorari gives discretion -we say Cong confers juris even tho Art III does bc what Cong doesn't recog isn't allowed -Don't have full Art III juris bc amt in contro req -Rarely use Exceptions pwr bc: -if upset at a decision, can make law saying no juris, but doesn't overturn bad decision -freezes opinion in place -language of Exceptions Clause warrants modesty Exceptions Clause: "shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make"

Standing quirks

-Easy to manipulate -Suing gov for influencing another thing is SUS -Public law (class action, gov action) SUS -No standing to require prosecution of another person example: Linda R.S. v Richard D -mother out of wedlock child injunct father to pay child support -ct said no showing that nonenforce led to failed support; "private citizen lacks jud cognizable interest in prosecution of another" (perhaps race, sex, can review) -False Claims Act which allows private AGs for fraud is not same

Martin v Hunter's Lessee 1816

-Land seized from Loyalists by VA. Treaty of Paris allows Martin to sue for it back -Martin claim title from Lord Fairfax; VA and Hunter say VA took property b4 treaty in effect -VA Ct app rules in favor of Hunter/state auth to take the land; SCOTUS says no -VA uphold seizure, says no SCOTUS juris over Q -this was an unsettled question ?Does the appellate power of SCOTUS extend to state courts? HOLD: SCOTUS can review state court decisions of federal constitutional questions Dispute over Sec 25 Jud Act (giving this juris to SCOTUS)- Creation of Sec 25 contemporaneously means Const makers intended it REASON: -Fed power from people, not states -Art III extends to "all cases" (not all "courts"), which confers SCOTUS appellate juris -If discretion to create lower Fed courts not exercised, then nothing for appellate jurisdiction to act on unless can take STATE cases -The Const does bind states -Fed judicial review creates UNIFORMITY! -Supremacy Clause (we can't trust states to protect federal rights because jealousies)

Baker v Carr 1962

-NOT a POLIT Q TN voters seeking injunction for TN to redistrict election legislative districts for viol Eq Prot bc of population change-district ct says nonjusticiable (brought under Republican Guarantee (Art IV, Sec 4) clause) REASON: a polit right being violated doesn't make it a polit Q -relationship between jud and Fed gov, not Fed jud and states, which is polit Q Generally: Brennan: Textually demonstrable Const commit to a diff branch; lack of judicially discoverable/manageable standards to resolve; impossibility to decide without initial policy determination; imposs to resolve without disrespecting other branches; unusual need to follow previous political decision; fear of multi diff departments having diff answers HERE: Q of state consistency with Const, not a Q for another branch or fear of policy -just bc can't use Guaranty Clause doesn't mean Eq Protec, which is well-developed, cant be used (is this really a standard?) Dissent Frankfurter: Court must detach from politics, this is Guaranty Clause case; apportionment highly complex and you remanded without offering a remedy/no standards

Legislative Standing

-No standing to challenge const of a law that they didn't vote for -can sue for indiv harms (Powell being ejected) Raines v Byrd: if legis could challenge; would be like another House

Nixon v US 1993

-Senate impeachment procedure IS POLIT Q Frmr judge accused of perjury, refused to resign while in prison, impeached Senate Rule XI allows committee to do hearing, then front of full Senate ?Does that viol. Impeach Trial Clause in Const Art 1 sec 3 sec 6? ?BIG Q: justiciable? Reason: "try" has had broader meanings that full Senate -thus, no manageable standard for review -"Sole" power to impeach, impeach the only check on the judiciary: -judiciary can't be in charge (also textual commitment) -also practical issue of what happens if ct decides now not to impeach-reinstate Concurrences: not polit Q bc can be looked at the merits, "try" does require a minimum standard, but what Senate did here was fine-we can rule on this Souter-this is polit Q bc Senate can determine procedure, but don't foreclose because what about a coin flip (Mayorkas at the border for policy dispute?)

Get around the 11th Amendment

-Suing a subdivision -14th Am cause of action: bc l8r, "nor shall any state deprive Eq Prot" (Sec 5, 14th Am gives Cong pwr to implement legis -could allow suits against state) -Unmistakably clear consent to be sued (limited circ in torts eg) -Cong has pwr to tax/spend and some goes to states -can give conditional grants (consent to b sued in fed if a problem) -Unmistakably clear consent

Organizational/Associational Standing (org stands in for one-plus of its members, like Lujan)

-can sue if a direct harm to the org (like tearing down Sierra Club building) REQ: at least one member has standing in own rights; member injury has to relate to org purpose; no reason that requires participation of indiv members (ie damages NO, injunction or declaratory judgment OK) WA Apple Growers Assoc v State of NC: -sue for anticomp commerce clause viol, and could sue

Marbury v Madison (1803)-Chief Justice Marshall magnum opus

-filed as trial in SCOTUS; midnight judgeships couldn't be filed in time, suing for writ of mandamus Q: Does he have right to judgeship? -Yes, commission was proper Does he have legal remedy? -Every legal right has a remedy; this delivery wasn't politic discretion but a vested right (keeping in mind delicacy of interfering with exec--about act, not person directed act)

Ways to avoid mootness

-issue of major significance doesn't matter but... 1. Capable of repetition yet evading review Roe: finite days of pregnancy but you can become pregnant again Repetition: to the SAME Plaintiff 2. Voluntary cessation of illegal activity-- Not enough almost always to defeat mootness If no reasonable likelihood that D could return to own ways (like a state being repealed) Very strict boarded up plant not enough bc corporation still had factory v. DeFunis (not applic bc no change in admin process) 3. Class action: Sometimes, even if moot to named party, can be alive for members of class 4. Byproduct effects still alive Powell sue to be seated in HoR (exclusion not a political Q), but became elected and seated so case moot-ok bc he wanted pay for session we was excluded Collateral consequences like loss of certain rights, back pay

Statutory standing (citizen suit in a lot of enviro laws)

-legis creation of an interest to you the harm to which gives yo standing -CANT overrule Art III -hypo: statute says a bank must give you a receipt, if not, liquid damages-but need a statute that is interpreted to give a cause of action -may say "any person" can sue or is implied NEED: 1. Stat interpretation giving cause 2. Zone of interests: who is meant to be included (what if another bank, not an indiv, wanted to sue?) -generally, suing gov to enforce isn't allowed unless very clear statute FedElecAtkins: filed with Agency, said no, go to SC-says OK Bennett v Spear: ANOMALOUS -FishWild limits on water use bc harming fish under ESA -Ranchers want to access this H20, is this what ESA had in mind? -OK; "any person" expand zone of interest-allows objector to sue Miami v Bank America: stat standing, challenge predatory lending leading to homelessness which burdens Miami social services; NO standing even tho statute would allow bc not close enough connection-not a Q of foreseeable, but PROX CAUSE

Political Question Doctrine

-not a ton bc the Court puts itself out of business 1. Textually demonstrable constitutional commitment of the issue to another branch (classical/formal) 2. Ct lacks judicially discoverable and manageable standards to decide the case -Maj in Nixon about "trying" case; dissent: we know what try means (ask: what is the scope of the matter committed to another branch?) Lesser concerns: 3. Impossible to decide without making an initial policy judgment 4. Can't decide without disrespecting another branch 5. Unusual need to adhere to polit decision already made 6. Finality/foreclosing the issue (Nixon v US Souter) 7. Potential for embarrassment of multifarious departments pronouncements (foreign policy)

Prudential Rules/3rd Party Standing: (someone in court who suffered a harm, wants to include someone else)

-ordinary as a prudential rule, not allowed-want people to raise own rights, but can allow Art III Narrow exception: if a spec relation between you and 3rd party absentee AND hindrance to 3rd party raising it themselves -Dr raise rights to protect patient wanting abortion-Dr harm is fee and inability to give advice -ct has allowed it bc special relat and privacy hindrance -Beer seller, law said men 21, women 18-harm missing out on sales, raise rights of men -seller-buyer relat was OK, and hindrance was male embarrassment-allowed it

Exceptions Pwr hypos

1. In cases challenging firing of fed employee for nat sec reasons, SC no juris to consider if firing violated 1st Am -----Using Except Pwr to make case come out a certain way, bc free speech is ct's purview on the merits —NO 2. Natl disability benefits program, but only paid to whites. No court shall have juris to challenge -----"No court" violates DP; can't ban all 3. No fed court shall order bussing as remedy in any case ----Remedies NOT outcomes; this is OK, Cong can deal with remedies Ie taken away injunction in certain labor disputes Limit: if remedy the only remedy, can't remove 4. SC no appell juris to hear cases challenging state laws as violative of Estab Clause 1st US v Klein: can't decide a specific case-has to be for classes of cases (all securities, all labor disputes) Never been decided, but seems violative 5. SC has OG juris as provided in Art III. No appellate jurisdiction whatsoever No idea; Exceptions Pwr likely means something is left over Special func theory: SC has special place made by Framers

Article III of the Constitution

1. Jud power vested in Supreme Court and inferior as established; good behavior and life tenure 2. Sec 1. All cases (ambassadors, states, state and citizens of other states or state v state) Sec 2. SC OG juris for ambassadors/states; others appellate juris; Exceptions clause

McCulloch question 2

?Can a state tax a bank? -MD can't tax the bank bc interfering with fed institution violates Supremacy Clause -power to tax is power to destroy (incompatible with fed power to create/protect bank) -theory of political accountability-if taxes too high, vote out state people, not Fed -not a two-way street, so Fed could tax

Marbury v Madison greater significance

A lecture on the power of the courts but avoided looming problem of enforcement -Jud/SCOTUS have sole resp. to weigh Const -First to use jud review to strike down a law (it's exceptional to say another branch can't do something) -Even applies to Pres, exec officials--no matter how high, you're subject to court power (Levi Lincoln doesn't want to testify bc exec priv, ct says no--Cong can't remove exec officials but can specify bases of removal and prescribe duties)

11th Amendment

Art III, Amend XI: "Jud power shall not be construed to extend to any suit commenced against any of the states by citizens of another state or citizens of a foreign state"

Case or Contro

Art III, sec 2 Requires adversity Muskrat v US 1911 FACTS: US reserved Cherokee land; new legislation increased # of people, which some though would decrease their land amount in violation of DP 5th Am ISSUE: advisory opinions REASON: long precedent since Jefferson to decline advisory opinions; need ADVERSE parties -US a defendant here, but really has no adverse claim

Necessary and Proper Clause

Article I, Section 8, Clause 18: [The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers (not an indep pwr, a rational convenience test) -must be traceable back to Const permission Ie McCullogh: money (coins), thus OK to make a place to put your money -state can't tax or regulate a federal thing bc polit accountability

Meaning of the 11th

Chisom v GA: ISSUE: Out of stater Chisom sues GA for civ war debt in fed ct—pass 11th bc worried about this -States worried about overpowered fed Now, Private citizen (out or in state) can't sue a state as such!! -background of sovereign immunity for states -Cong can give a right of action -11th doesn't apply to State v. State or Fed. v. State.

Kinds of Standing

Citizen, taxpayer, statutory citizen suit, legislator, prudential rules and 3rd party, Org/Assoc, Constitutional violations for which no one can sue

Powell v McCormack 1969

Congressman claimed House improperly refused to seat him; says no basis in law to exclude him ?small q: is this moot now that he has a seat? Big Q: NOT a POLIT Q HOLD: exclusion not same as expulsion (which is polit Q, not reviewable) -a vote in House about whether you meet qualifications for office can be reviewed -Ct decides if polit Q and the scope of matter committed to other branch -scope: only age, citizenship, residency

Marbury v Madison cont.

Does court have juris to hear the case? NO! Jud Act Sec 13 which have OG over mandamus is wrong bc Art II Sec 3 of Const says only OG over ambassadors, states etc "Act repugnant to Const is void" "Province of jud dept to say what the law is"

General scope of federal powers

Fed powers are limited (trace to Const) and enumerated (trace to words) -Limits: textual (all not granted is prohibited) and external (Bill of Rights) -Fed gov DOES NOT HAVE POLICE PWR Const/gov power comes from people, not the states

Lujan v Defenders of Wildlife: 1992

HOLD: "citizen suit" provisions are unconst if no injury SCALIA REASON: indiv P have no concrete plans to visit animals (no direct, spec harm) -no guarantee a regulation would change, nor is small funding withdrawal gonna -reject nexus argument -legis can't give indiv right to sue bc sep of pwrs issue for jud branch to define standing/police the exec (if injury clear (tix next week) and sizeable $, may be diff) Kennedy Concur: Cong can define injuries, tho citizen suit still wrong -requiring tickets is crazy, bu harm must be personal Dissent: concrete plans is ridic; not ruling takes away ct power, does not step on exec bc Cong can set procedural restraints

Allen v Wright 1984

HOLD: no standing -O'Connor applying a strict rule IRS denies tax exempt statute to racially discrimin schools; class action of parents whose kids aren't at those school to expand class of denied schools; seek declaratory judgment -nationwide, massive class action -sue IRS bc want better enforcement -asking for broad, dramatic order HOLD: -no clear injury to P (gov aiding schools to create white havens, stigma harms-to loose) -consequential argument: fear of Hawaiian suing a school in ME -tax exempt hurting public school desegregate is not traceable -only speculate how IRS policy change can improve this -acknow there is a harm, but causal is not always redressable -is this excessive relief? Reordering IRS could address, but is it way too big -sep of powers Dissent Blackmun/Stevens: Tax exemption is like a subsidy, and econ shows removing tax exempt will harm discrim schools Sep of powers argument is weak: could mean just Art III standing, could be court confusing standing with justiciability of the subject matter (polit Q); not treating as injuries agency decisions—all wrong Can challenge a specific agency legal limit on its enforcement discretion Stevens concur: did name specific schools O'Connor really bothered by P asking exec branch to do a better enforcement job, monitoring prosecutorial discretion

Special quirks of Constitutional interpretation

Higher law, hard to amend, different than a statute look to Const text, history of text/contemporaneous understanding of the text, background values, consequentialist arguments

McCulloch v Maryland 1819: pt 1

ISSUE: Cong wasn't sure if power to charter a bank; did; made state branches, but panic leads to MD taxing unchartered banks (power to tax is power to destroy), McCulloch is bank cashier who ignored the tax -bank was controversial, but had a stabilizing influence Marshall construes fed powers broadly and limits auth of state gov to impede fed gov 1. ?Can Cong incorp a bank?--NECC/PROPER (NOT INDEP PWR, BUT AN EXTENSION) -Yes; acquiescence of Founders (bank discussed, operated-not dispositive but imp) -Cong is sovereign gov of people, not states -Const would be too complex if all power explicitly stated-can't anticipate all -"this is a const we are expounding"------interp a Const different than a statute -not to embarrass Cong by making them unable to act -Makes no sense to read Const as restricting power -not 'absolute necessary,' but what is needed for a particular result -Necc and Prop placed within list of powers, NOT restrictions HOLD: NECC and PROPER === convenient and useful!!

Simon v E Kentucky Welfare Org:

ISSUE: EKW brings suit IRS bc tax exempt hospital that didn't accept indigents HOLD: no standing bc claims speculative, even if hospital isn't tax exempt, only speculative to get free care through hospital -no legal theory or basis to sue hosp directly either

Raines v Byrd:

ISSUE: Line Item Veto, which they didn't vote for, is unconst HOLD: this claim about loss of polit power, not a polit right -distin Coleman v Miller (1939)--allowed state to challenge process to resolve tie vote -the remedy is to repeal law or Const challenge by someone injured (it was in Clinton)

Ex parte McCardle: 1869 Reconstruction Era military rule

ISSUE: McCardle publish articles criticizing military rule; arrested and held so files habeas corpus (why in military court when civ is open) per HabCorpAct 1867 which have fed courts juris -Claimed military rule was unconst -Cong worried; passed a bill after SCOTUS hears argument to repeal SC appellate juris -NO juris bc repealed explicitly by Cong McCardle argued: Cong can't take power from ct bc Const confers, illegitimate to influence policy in this way—Ct says too damn bad -Enigmatic principle: this doesn't remove habeas actions, only those on appeal from act of 1867

Roe v. Wade

ISSUE: Roe's case isn't moot bc she's no longer pregnant REASON: usual rule that the case must exist at appeal, not just when action began -but with pregnancy, law can't be that inflexible -pregnancy can come more than once to the same person "capable of repetition, yet evading review"

United Public Workers v Mitchell

ISSUE: federal servants sought declaration that Hatch Act prohibition on being in political campaigns violated 1st Amend, request injunction (others merely anticipate violating it) REASON: still a hypothetical threat Dissent: making these people be fired would be injurious All of this is in turmoil bc 303 Creative exception

DeFunis v Odegaard:

ISSUE: man denied from law school, claimed discrimination violating Eq Protec Clause -sought own injunction, began school, ct reversed but he was about to finish REASON: He can complete school, so case is moot -Mootness: even though WA has great interest in issue, this case is over -"voluntary cessation of alleged illegal conduct" may not lead to mootness if offending parties could go back to offending (still not the case here, no change in admin process) -"capable of repetition but evading review"-he's done with school, and someone later could raise another Dissent: something could happen and school has discretion to deny him -avoidance of repetitious cases serves the public interest, this case will come again, deal now

Bennett v Spear: 1997

ISSUE: ranch districts file action SecInt-citizen suit of ESA; restricted water impacts suckerfish HOLD: Ct says they do have inj, so standing -bc P allege H20 reduced, can presume how they will be injured -ESA allow suit by "any person"

US v Klein

ISSUE: suing to recover land post CivWar, statute allowed if show didn't help Confed -he relies on pres pardon to show, but statute says pardon not enough -Cong strip SC of juris to hear pardon-land cases HOLD: McCardle doesn't control, bc direct sep of powers prob -Cong trying to adopt a rule to decide a case

Federal Election Commission v Atkins: 1998

ISSUE: trying to get a group classes as a "polit committee" for disclosure req by FedElectCampAct HOLD: did have standing; FECA "any person," "any party aggrieved" means broad scope -it is injury bc concrete, particular that they didn't get info that would be attainable with properly classed—trace/redressable too -USUALLY agency nonenforcement isn't reviewable, here statute is clear Dissent: statute not allow 3p to compel enforcement-if so, gives cts exec pwr

US v Comstock 2010:

ISSUE: want to civilly commit sexually dangerous persons who committed fed crimes (send porn through internet eg) post prison HOLD: Under Necc and Proper, can Cong enact a law to do so? YES -Necc and Prop allows laws "rationally related" to enumerated power -has allowed Cong to make fed crimes -GOV is CUSTODIAN of fed prisoners -Civil commitment modest addition to existing fed prison mental health scheme -Statute reasonably extends to cover people already in fed custody; about duty of safety -Statute properly accounts for state interests -not pwrs reserved to states -Link between statute and enumerated pwr isn't too attenuated WHAT IS THE TEST TO USE NECC AND PROPER: MAJORITY SAYS "IS THE ACTIVITY RATIONALLY RELATED TO THE CONST PWR"--low bar aka not crazy Alito concur: to carry out powers on which fed crim laws rest, also necc to protect public Thomas/Scalia dissent: gov not ID'd a specific enumerated power WHAT IS THE TEST TO USE NECC AND PROPER: DISSENT SAYS: ONLY ONE STEP REMOVED FROM THE ENUMERATED POWER YOU'RE RELYING ON (but too late, clause has expanded so much at this point)

How can the Supreme Court enforce it's decisions?

It can't unless the President sends in forces (desegregation)

Features of federal courts/judges

Life tenure, protected from politics, appointed Pro: Hamilton "neither force nor will but judgment" Con: counter-majoritarian difficulty

Constitutional violation for which no one can sue:

Norm w/o enforcement-titles of nobility -member of armed forces want to challenge dual office holding (legis in military) -ct said no standing, injury abstract-we all faithfully do duties -no emoluments/salary -Birtherism denied standing (reserve mil members brought bc oath to Const)(What if McCain brough it-argue campaign costs, but really what?)

Originalism

OG meaning (is this intent, understanding, or objective meaning?) -Seek OG meaning -Only approach that recognizes Const's status as authoritative -Necc to preserve democratic values -Constrain judges imposing their own views -Method established by precedent

Ripeness

P must allege actual injury or immediate threat of injury to be ripe The fine line of pre-enforcement review -if you challenge proposed but not yet passed -NO Must allege 1. P suffered a harm 2. Is faced with a specific present harm, OR 3. Is under threat of specific future harm

Categories of limits on judicial review:

Polit Q; Standing; Ripe/Moot in re Case/Contro; Limited by a specific statute

Mootness

RULE: case has to be alive at all stages of litigation, including appeal A case is not moot when harm to P is continuing of capable of repetition on P or others in future

Nonoriginalism:

Still look for OG, but may apply in a more modern way Look for judicial precedent to see if consensus on Const principal Departure may be necessary to retain legitimacy Deadhand leads to lack of legitimacy, and amendment unlikely Originalists still add in own meaning

Standing (if court really wants to, it can find standing)

To have STANDING, need: 1. Injury in fact to P-invasion of a legally protected interest both a. Concrete and particularized b. Actual or imminent Not conjectural or hypothetical (Lujan: found only a speculative interest wasn't enough-no personal interest to the P) (Why-don't want advisory opinions, want adversity) (Want people to litigate meaningfully, not crowd court) 2. Causal relationship between the injury and the challenged conduct-D's harm "fairly traceable" (iffy to sue government bc its influencing someone else) 3. Likelihood that the injury will be redressed by a favorable decision

Cohens v. VA (1821)

VA says because Art III gives SCOTUS OG juris to cases where state a party, it can't have appellate juris based on dicta in Marbury. Marshall rejects, all cases go to SCOTUS!

Judiciary Act of 1789

created the federal court system Sec 13 (Supreme Court OG juris for writs of mandamus) declared unconst by Marbury

Citizen standing

no such thing; reject (aka only claim standing bc ur a citizen and unhappy)