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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.