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Power of Judicial Review 1. Constitutional Text 2. Constitutional Structure 3. History 4. Original Meaning 5. Political Theory 6. Pragmatic Considerations(Cause and Effect) Marbury v. Madison – established the power of judicial review for SCOTUS [Used a bad argument and mis written opinion full of dicta to establish judicial review] Judicial Review Established by Marbury v. Madison 1) Power to review legislative rules/acts 2) power to review executive branch acts (the issuing of the commission was reviewable) 3) power to interpret the Constitution Political Act – Action that is only subject to will of department/branch of government that is executing action in question – politically examinable – not reviewable by courts Zone of Discretion – political branches have certain powers that allow them to act in certain manners that are not reviewable by judiciary Zone of Review – actions by legislative and executive branch that can be review by judiciary. obiter dictum = dicta - talk and nothing but cheap talk! Martin v. Hunter’s Lessee - established SCOTUS power of appellate jurisdiction over state supreme courts [Used a textual argument to ground that the SCOTUS must have review power if it was given appellate jurisdiction without forcing the creation of lower federal courts, also used consequentialist arguments in stating that having different interpretations of the Constitution in states of the same “union” would be ridiculous in nature and could not be correct] Supremacy Clause Article VI, § 2 - This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding. Cooper v. Aaron- established that everyone is bound by SCOTUS decisions not just the parties in the case [Used argument that everyone is bound by constitution and the SCOTUS is the supreme interpreter of the constitution and you can not act against what the constitution says no matter what, everyone is subject to the ruling of the court] Justiciability Colegrove v. Green, 328 U.S. 549 (1946), was a United States Supreme Court case. Writing for a 4-3 majority (plurality- 2 recused {Chief dead, 2nd at Nuremberg)), Court held that the Supreme Court had no power to interfere with issues regarding apportionment of state legislatures citing a lack of judicially manageable standards. Art IV § 4 **The Colegrove decision would later be overruled by Baker v. Carr.** Gomillion v. Lightfoot(1960) was a Supreme Court decision that found an electoral district created to disenfranchise blacks violated the XIV Amendment. Baker v. Carr (1962) – established the doctrine for determining if an issue is a political question [six different things listed but not all that clear, in the case the court held that it could force the redrawing of TN voting districts because there were justiciable standards for XIV and the people can not really turn to the broken political branch to fix the broken political branch, highlight was that political questions also only apply within the 3 Federal Branches of Government, state government conflicts do not pose political questions] Guarantee clause is non-justiciable Art IV § 4. 1. Not a political question bc State vs. Fed 2. Did not lack judicially manageable standards – Gomillion v. Lightfoot. 3. Cannot rely on broken system to fix itself – Process Theory “textually demonstrable delegation to another branch of government”-roll off your tongue Political Questions exist between Federal Judiciary and other branches of the Federal Government ONLY, [Not Federal Judiciary and State Governments] Political Question if: 1. specific text in the constitution that delegates the authority of the action being questioned to a specific branch of the federal government[not the judiciary] 2. a lack of judicially discoverable and manageable standards for resolving the issue[Article 4 §4] 3. a case that present an issue which cannot be resolved without first making a policy determination that is clearly not a policy that the judicial branch should be deciding [Luther v. Borden (1849) recognition of governments, who is in power in a territory] 4. A case in which the judicial branch resolving the case would express a clear lack of respect to the other branches of the federal government 5. An unusual need to support without question a political decision that has already been made. [Time of War or National Emergency] 6. The potential of embarrassment of producing a ruling that conflicts with the interpretations of other departments of the federal government on the same issue [directed at foreign powers, treaties must be interpreted the same by the court and the executive branch, executive’s determination of end of war date] Plenary Powers – Singular and absolute in nature. Zone of Review v. Zone of Discretion Nixon v. United States - Senate Rule 11 – Impeachment trial has sub committee hear testimony not whole Senate ~ application of political question doctrine in impeachment proceedings Court determined that impeachment proceedings were a political question relying on 1. the term “Sole” for the dedication of the power to the Senate and 2. Inappropriateness nature of both permitting appeal of impeachment,(time consideration, what happens while on appeal, what happens if overturned? Return to bench? What bench? New judge put in place already… and 3. Inappropriateness of the Judicial Branch checking the action (impeachment) meant for the legislative branch to use in checking the Judicial Branch(only check on lifetime appointments to federal bench) 4. Plenary Powers are Complete Muskrat v. United States (1911) - Grounded in Case or Controversy text of Article III. The Supreme Court refused to allow the case to be heard, though the United States was named as a defendant, the case was not an actual controversy: the Court's ruling would be nothing more than an advisory opinion; rather, the statute in question was merely devised to test the constitutionality of earlier land grant and subsequent modification of the legislation, established standing requirement that both parties “have a dog in the fight” *Significance lessened with development of declaratory rulings; but in such a case interest of parties is genuine although no relief is sought* Advisory Opinions – Would take away option to hear cases (important for court to pick its battles) If they give opinion and you go against it then what? Institutional Competence –skill set of a particular branch or agency of the government may make it appropriate for that branch to interpret something in question. Supreme Court seems to favor interpreting Article III and terms of a judicial nature (exception Nixon = try) Standing (Here ~ Real Party in Interest) – You can not merely challenge a law, there must be two parties with conflicting interest on opposite sides of the action, adversarial system requires this in order for full effort to be put into arguments in front of court. Standing v. Real Party in Interest - Interesting point made from Civ Pro. Allen v. Wright (1984) – applied and identified testing points for doctrine of justiciability in order to determine standing Tax exempt status being granted to schools that discriminate based on color] P’s did not apply to schools and the causation chain was weak. That removing the tax exempt status would do anything, redress ability Standing Doctrine 1. Injury – Actual or Imminent(inevitable) NOT GENERAL GRIVENCE anyone could bring 2. Causation – Injury must be fairly traceable to actions being challenged 3. Redress ability – Will remedy being sought fix the problem in question (IRS tax exempt status…. Order to compel Secretary to consult, but not ordering other agency heads to do the same) Lujan v. Defenders of Wildlife (1992) - further developed the injury prong of the standing requirement court denied standing to green peace junkies because they had no definite plans to return to the endangered areas, there was a weak and unsustainable cause of action and they drug the wrong person in court, questioning the actual effectiveness of the redress based on parties and the fact that funding was only a % attributable to the government actions they were seeking to change Non-Extraterritorial - Congress generally write laws that only apply in the territory of the USA. Extraterritorial – a clause must by added to legislation meant to apply outside the borders of the USA (Torture Prevention Act) Standing Doctrine 1. Injury – Actual or Imminent(inevitable) NOT GENERAL GRIVENCE anyone could bring 2. Causation – Injury must be fairly traceable to actions being challenged 3. Redress ability – Will remedy being sought fix the problem in question (IRS tax exempt status…. Order to compel Secretary to consult, but not ordering other agency heads to do the same) ** Court seems to prefer injury prong of 3 prong standing test as opposed to ripeness** “capable of repetition yet evading review” - allows for “time sensitive” conflicts that can be heard by SCOTUS, nature of case means that case would always be moot before it could reach SCOTUS Voluntary cessation – neighbor polluting pond, stops when suit is brought. Collateral Consequences – sentenced to jail, but can dispute felony status for voting rights and other things Class Action – representative loses status does not throw out suit for entire class. Laird v. Tatum 408 U.S. 1 (1972) – Ripeness Case - US Army was gathering information on citizens but had not done anything illegal with it, cannot bring case until actual injury occurs. DeFunius v. Odegaard 416 U.S. 312 (1974) – Mootness Case; example of doctrine but not decided based on it because student was still in school, but was about to complete UW law school. Really was a dodge of the case under abstaining to avoid ruling on controversial topic Ex Parte McCardle – ruling on jurisdiction of the court to hear a case - Guess they can’t really hear the case unless it is described in Constitution or Congress gave it to them, and if they giveth, they can also taketh away! [Habeas Corpus petition for a southern man that attacked the military rulers during reconstruction and was tried by a military panel] The court will not question reason of Congress (strong view of deference in this case) when it comes to contracting the appellate jurisdiction, this is a responsibility given to Congress by Constitution. Massachusetts v. EPA (2007) - Supreme Court case decided 5-4 in which twelve states and several cities of the United States brought suit against the United States Environmental Protection Agency (EPA) to force that federal agency to regulate carbon dioxide and other greenhouse gases as pollutants. The dissents question standing on several basis including 1) injury of losing land is too speculative in nature 2) regulating CO2 by the EPA is in no way certain to redress alleged injury (drop in the bucket) Summary of Justiciability 1. Standing is Required 2. Case cannot pose a political question 3. Case can not present an advisory opinion (dog in the fight) 4. Case must be ripe 5. Case must not be moot 6. Chicken Out Rule – Political or other reasons may call for court to choose not to hear case, Court is given the power to select its docket of appeals. Commerce Clause Gibbons v. Ogden ~ test: commerce is more than buying and selling, it is intercourse….. navigation is interstate commerce when the navigation touches more than one state, and if it is interstate commerce, Congress can regulate it… Congress’s wisdom and the political process are the only checks on regulation of interstate commerce. E.C. Knight Co. – Sugar Trust ~ Direct vs. Indirect Relation Test, and manufacturing bears no direct relation to commerce between the many states or foreign nations. Challenge was as applied, not on the face. If a business transaction is geographically constrained to one state, the Federal Government cannot regulate the transaction. Shreveport Rate Case ~ Direct vs. Indirect Relation Test - Close and Substantial Relation Test, Common Instrumentality of Commerce Congress can regulate intrastate activity if the activity can cause injury to interstate commerce. Swift & Co. v. United States ~ Stream of Commerce – Cattle shipped interstate retain their rights even after arriving at holding pen to be sold intrastate. Stafford v. Wallace ~ meat packing industry in Chicago, halted price fixing. Champion v. Ames ~ Lottery tickets shipped interstate – USE OF CHANNEL(product does harm once it reached destination) Hipolite Egg ~ prohibits shipping of bad eggs interstate – USE OF CHANNEL(product does harm once it reached destination) Hoke v. United States ~prohibit shipping of women – USE OF CHANNEL(product does harm once it reached destination) Hammer v. Dagenhart ~ Indirect vs. Direct Relation – The act does not regulate transportation, like in Champion, Hipolite, Hoke, instead the act tries to regulate child labor laws. The product is not harmful, there is no harm done when the product reaches the final destination. Court called Congress liars. (product DOES NOT DO harm once it reached destination) Schechter Poultry Corp. ~ Chicken shipment interstate, Cardozo concurrence, size does matterPrecursor to Substantial Effects Test. Carter v. Carter Coal Co. ~ Direct v. Indirect Relation – manufacturing is not direct, cannot be regulated by Congress. Employer/Employee is local state regulated relation. Coal is not significant *Could same regulations be put on railroad employees* NLRB v. Jones & Laughlin Steel Corp. ~ Substantial Effect on Interstate Commerce – Evolution of Direct v. Indirect. Relation. Interstate company, did not go so far as to over rule previous decisions. United Stated v. Darby ~ Advances Substantial Effect to local manufacture. Overrule Hammer v. Dagenhart, Carter Coal. If the ends are within Congress’s power and the means are plainly adapted to the end, the power is Plenary, Congress can choose the means. Wickard v. Filburn. ~ Aggregate Effect Test ~ If many people acting in the same way could have a Substantial effect on interstate commerce then the action may be regulated, even if noneconomic? United States v. Lopez ~ The Act regulates mere possession, this is a police power of the state, the Feds cannot impose this type of regulation, it does not relate to commerce in a cognizable manner. The possession of a gun distracts children who learn less who make less productive workers. Lopez Test 1) Use of Channel of Commerce 2) Instrumentality of Commerce (things, persons, good of commerce) 3) Substantial Effect of Commerce (including aggregation) Economic v. Non Economic - In aggregate can the regulated activity have a substantial effect on the interstate market? - Is the thing being regulated economic? - Are the means legitimate in regards to the X Amendment. United States v. Morrison ~ Economic vs. Non-Economic – Invasion of state police powers… the activity being regulated is purely that of something reserved for the state’s based on the Constitution. The End may have been legitimate, but the means was precluded based on the X Amendment. This is not about commerce; the activity in question is not economic in nature, dealing with supply, demand, production. Congress supported Act with a ton of findings, still not enough for the court. Gonzales v. Raich ~ Substantial Effects of Aggregation (Wickard) replaced by Rational Basis, lower level of scrutiny. If the Ends are legitimate….are the means a rational basis to achieve the Ends? **Here Congress is trying to extinguish a market** pg 202 bottom - Part of a larger regulatory scheme. -If the means be legitimate and economic Majority – Holds that End is grounded in Commerce Clause and the means are a rational basis to achieve the ends. Concurring – Scalia holds the means are not justified by Commerce Clause but by N&P clause. Dissent- 1) stands on rights of states as “laboratory of democracy” 2) Conflict of judgment motivating Congress to create broad regulatory legislation that is legitimate bc of scope alone (ironic after New York restriction on choice) 3) Economic v. Non Economic – Congress should not be allowed to regulate noncommercial/noneconomic activity because it could effect interstate commerce (court sites home care vs. day care, children playing games at home vs. buying movie tickets) Power to Tax Child Labor Tax Case – Tax was regulation not tax, no strict liability standard, mens rea required, tax was on all revenue if invoked, not materials made by children, not enforced by IRS. RULE: {1922} Does this law impose a tax with only that incidental restraint and regulation which a tax must inevitably involve? Or does it regulate by the use of the so-called tax as a penalty? U.S. v. Kahriger - Congress may tax the crap out of gamblers if it chooses. Just taxing income and this is not a N&P question, power to tax is enumerated. U.S. v. Butler (1936)(pre switch) - Supreme Court ruled that the processing taxes instituted under the 1933 Agricultural Adjustment Act were unconstitutional. Justice Owen Josephus Roberts argued that the tax was "but a means to an unconstitutional end" that violated the Tenth Amendment. Rules that agriculture was not enumerated in Art. I § 8 and therefore X reserved regulation of agriculture to states. *must be voluntary or under another enumerated power* General Welfare Interpretations 1) Grant of Authority separate from preceding text that confers power to tax. This would mean Congress can do anything for general welfare, not correct. 2) Congress can tax and spend only in support of the enumerated powers in Art. I § 8 [Madison view] 3) Permits Congress to spend for the general welfare even if Congress could not achieve its desired objective in support of enumerated powers. [Hamilton view] ~ applied to Butler is correct because the ruling turned on the regulation of agriculture, not the spending of the program. Spending South Dakota v. Dole(1987) – In this case withholding federal funds for roads was ok because it was an incentive program, not a mandate. If you did not comply your state did not lose all money, just some money. Congress can incent in this manner just not “commandeer” choice from states. Limitations on Spending 1. Exercise of the spending power must be in pursuit of the general welfare 2. If Congress desires to condition State receipt of Federal funds it must do so unambiguously enabling States to exercise their choice knowingly, cognizant of the consequences of their policies. 3. That conditions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs. 4. Constitutional provisions may provide an independent bar to the conditional grant of federal funds. State Immunity from Regulation National League of Cities v. Usery(1976) – Fair Labor Standards Act, regulation of State government minimum wage. Court ruled that Congress can not infringe on “traditional state activities” Garcia v. San Antonio Metro Transit Authority (1985) Overruled National League of Cities v. Usery because of the unmanageable standard of “traditional” activities. Dissent worried about taking down the barrier all together, like we have now? New York v. US. (1992) Nuclear waste disposal. Congress may not delegate authority to make regulations, must make them if it will but not “commandeer” choice of states, incentive is ok, but not forced choice. Printz v. U.S.(1997) Congress may not use state executive branch to enforce regulation, although it may use the state judiciary. Voluntary means no case is brought to challenge policy. State Immunity from Suit Alden v. Maine (1999) Court gives wide range to XI amendment due largely to the legislative history of the amendment. No citizen may sue a state, if they can, only for specific performance, not for damages paid by state. Summary 1. Congress may not create a statute to give citizens that right to sue a State unless there is an implementation clause in Constitutional power under which the statute is created (XIV) 2. Tax must be tax not regulation, sniff it out and call it what it is 3. Congress can create incentives through spending that are just that, but not backhanded regulation Two Part Tests – Butler?? Spending 1. Voluntary participation by state 2. If not voluntary ends must be grounded in other enumerated power Legitimate Tax 1) does it raise revenue 2) Is it a penalty.