Constitutional Law Review 2 PDF

CONSTITUTIONAL LAW: REVIEW 2 TA: Margaret Saunders [email protected] Agenda Finish Justiciability Standing, Ripeness, Mootness Political Question Gerrymandering Cases Presidential Powers Midterm Review Lujan v. Defenders of Wildlife (1992) ◦ Facts: Executive branch changed interpretation of...

CONSTITUTIONAL LAW: REVIEW 2 TA: Margaret Saunders [email protected] Agenda Finish Justiciability Standing, Ripeness, Mootness Political Question Gerrymandering Cases Presidential Powers Midterm Review Lujan v. Defenders of Wildlife (1992) ◦ Facts: Executive branch changed interpretation of Endangered Species Act (ESA) from extending to all foreign nations to only being applicable within the US and high seas. ◦ Issue: Standing? ◦ Analysis: ◦ Injury: Possibly seeing the animals in the future is too speculative (not concrete) ◦ Causation: Defendants before the Court have no ability to control whether the projects are built or not because they are only consulting; government is only a participator. Dept of Interior isn’t primary actor causing problem. ◦ Redressability: Secretary can’t ensure ESA followed abroad. There is no control over parties not before the Court. ◦ Holding: No standing – Does not meet requirements for Injury and Redressability Ripeness ◦ Ripeness: Bars consideration of claim before they have been developed ◦ Ask: Is now an appropriate time to review this issue? ◦ Injury cannot be speculative, must be imminent or already occurred ◦ Reasoning - When legislation is being proposed and hasn’t been enacted yet, a court cannot rule on the issue b/c it violates Art. III, § 2 “case and controversy” requirement. ◦ Ex. Congress passes a new law making an act a crime; No state has enforced it, no one been arrested for it, and no one punished ◦ Cannot bring a claim saying the law is unconstitutional ◦ If it helps, you can think of this not meeting the “Injury” requirement Mootness ◦ Requirement that actual controversy must exist at all stages of litigation, not just when the litigant filed suit. ◦ Ask: Is the controversy still live at the time of litigation? ◦ Occurs when litigants who clearly had standing to due at the outset of litigation are deprived of a concrete stake in the outcome by changes in the facts or in the law occurring after the lawsuit has gotten under way ◦ Ex. Law student challenging affirmative action program and was admitted to another law school while the litigation was pending but was about to graduate when the case would go to SCOTUS. ◦ Exceptions: 1. Capable of Repetition: Injury is over but can occur again 1. Ex. Abortion 2. Voluntary cessation: Not moot if defendant voluntarily ceases improper behavior 3. Class action suits Political Question Doctrine ◦ Idea behind PQD: May fit case and controversy requirement but out of concern for separation of powers court will decline to adjudicate a case and instead, issue will have to be resolved between the other branches of government. ◦ NOT based on Art III case or controversy ◦ Political Question Based on: ◦ Textual commitment to another branch ◦ Political question is strongest when constitution explicitly defines issue to another branch!! (e.g. impeachment to congress) ◦ Separation of powers among 3 branches ◦ Prudential concerns (idea of self-preservation) Political Question Doctrine ◦ Ask: Is the controversy between other branches inappropriate for review? ◦ Consider the following (Only needs to meet 1 to be a political question): 1. The text of the Constitution demonstrates commitment of the issue to a coordinate political department  (1) Does the Constitution grant a right to other branches, so the Court should not get involved? 2. Resolution would demand the Court to move outside its institutional competence and expertise  (2) Lack of judicially discoverable and manageable standards for resolving?  (3) Impossible to decide without an initial policy determination that uses non-judicial discretion? 3. Prudential concerns against judicial intervention  (4) Intervention would show a lack of respect to the other branches of government?  (5) Unusual need for adherence to a prior political decision?  (6) Potential for embarrassment because of differing decisions from other branches? Political Question Cases Nixon v. US (1993) Facts: Impeachment of a Federal Judge, he wanted to get paid while appealing impeachment Holding: Political Question; Impeachment is a PQ and the court stepping in would violate checks and balances Goldwater v. Carter (1979) Facts: Carter rescinded treaty with Taiwan (which committed the U.S. to using military force to defend if Taiwan was attacked) without congressional approval and Senator Goldwater sued because Senate was deprived of constitutional role. Holding: Political question because it involved Pres. Carter’s decision to leave defense treaty Zivotofsky v. Clinton (2011) Facts: Congress passed statute that allowed U.S. citizens born in Jerusalem to have Israel listed as their place of birth on their passports. State Department had longstanding policy of not taking a position on the political status of Jerusalem. Plaintiff sought passport and State Department declined to comply with the law. Holding: Not a political question o SCOTUS deciding on the constitutionality of the statute, not the merits of it How do we reconcile Goldwater and Zivotofsky? Congress had acted as an official body in Zivotofsky but not Goldwater  constitutional impasse for Court to resolve Court could address the Zivotofsky issue “without” diving into foreign affairs  stay within judicial competence Gerrymandering Cases Gerrymandering: Manipulating the boundaries of electoral districts to favor your own party Redistricting done by State Legislatures Packing: Putting all political opponents into one district Cracking: Taking compact districts and splitting them up **With these cases, we are looking at whether Gerrymandering is a political question that is nonjusticiable Baker v. Carr (1962) Facts: Tennessee had not conducted redistricting since 1901; Group of Tennessee citizens challenged State’s alleging 14th Amendment violation (Racial Gerrymandering) Holding: Legislative apportionment is a justiciable issue; Court can hear 14th Amendment-based redistricting cases; NOT a Political Question Gerrymandering Cases ◦ Rucho v. Common Cause (2019) Facts: Plaintiff’s brought suit challenging North Carolina’s districting map, alleging it was a product of partisan gerrymandering Holding: Partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts; Political Question ◦ Majority: “Founders did not think proportional representation was required” ◦ We can discuss issues around redistricting/racial gerrymandering (Baker), but the central question – “When has gerrymandering gone too far?” is a political one we cannot decide ◦ Kagan’s dissent: Gerrymandering is a political tragedy, and the Courts should get involved ◦ Participating equally in the political process is the most fundamental of rights being harmed by gerrymandering How do we reconcile these? Baker addresses Equal Protection claims, a constitutional issue Rucho: Separation of Powers **Political questions may be questions that are constitutional in nature, BUT the Court will not address them because they are better solved by other branches of government. Advisory Opinions ◦ Advisory Opinions ◦ Cannot ask the Court to give an opinion when there’s no dispute between litigants – no certification ◦ Decision must bring about a change/effect ◦ Goes to Standing requirements PRESIDENTIAL POWERS & CONSTRAINTS Presidential Power – Executive Branch ◦ Bottom line questions on Presidential Power: ◦ (1) What can the president do unilaterally? ◦ (2) What can he do only in conjunction with Congress? ◦ (3) What can he NOT do at all (even with congressional support)? ◦ **Keep in mind the topics we discussed at the beginning: Separation of Powers, Checks and Balances, Enumerated Powers – How do these come up in the powers that the president has? Presidential (Executive Branch) Power ◦ Article I § 7 ◦ Presentment clause – President signs bills into law after they pass through Congress ◦ Article II § 2 ◦ ◦ ◦ ◦ Pardon Power Commander in Chief Treaty-Making Power (provided 2/3 Senators concur) Appointment of Ambassadors/Public Ministers ◦ Article II § 3 ◦ President’s Responsibilities (State of Union, Reception Power, etc.) Impeachment ◦ Political accountability, not legal, judicial, or criminal accountability ◦ Role of House ◦ Power to Impeach (Art I §2) ◦ What is impeachable: Treason, bribery, high crimes and misdemeanors (Art II §4) ◦ Role of Senate ◦ Power to try impeachments (Art I §3) ◦ Must be by 2/3 majority vote ◦ Chief Justice – Acts as presiding judge (Art I §3) ◦ SCOTUS and Impeachment – Very Strong Political Question ◦ Left to Legislative Branch, SCOTUS will not review impeachments Inherent Presidential Powers ◦ SCOTUS has held Presidential power expands outside of enumerated powers, therefore, the president DOES have inherent powers ◦ When if ever, without congressional or constitutional authorization, can the president act? ◦ Acting under constitutional authority: ◦ Is president acting within the scope? ◦ Is the president violating other constitutional provisions? ◦ Acting under congressional statutory authority? ◦ Is the law constitutional? ◦ **Youngstown in the case that addresses this question and establishes the rule when the President is acting with inherent powers Youngstown Steel v. Sawyer (Steel Seizure) ◦ Facts: Truman issued an executive order directing the seizure of steel mills during the Korean War, to avoid the effects of an impending strike ◦ Issue: Does the President have the power under the Constitution to issue an order directing the Secretary of Commerce to take possession of and operate most of the nation’s steel mills? ◦ Holding: No - The President did not have the authority to exercise this power - there’s no statute that expressly authorizes the President from taking possession of the property as he did ◦ Takeaways: ◦ ◦ ◦ ◦ ◦ No implied powers and no authorization in the Constitution or by Congress to do it Not a “Commander in Chief” power Executive orders are not constitutionally based! Jackson’s 3 Categories of Presidential Authority 4 Approaches to Presidential Power in the Absence of Congressional or Constitutional Authorization 4 Approaches to Prez Power Absent Authorization ◦ (1) No inherent authority (Black Majority) ◦ President may only act with express statutory or constitutional authority ◦ (2) Interstitial Executive Power (Douglas Concurrence) ◦ President has inherent authority unless it usurps another branch ◦ (3) Legislative Accountability (Jackson Concurrence) ◦ President may exercise powers not mentioned in the Constitution so long as he is not violating a statute or the Constitution ◦ (4) Broad Inherent Authority (Vinson Dissent) ◦ President has inherent powers that may not be restricted by Congress; may act unless violating the Constitution Essentially answers to the question: How much inherent power does the president have? Jackson’s 3 Categories 1. The President acts with express or implied Congressional authority ◦ President authority is at its max ◦ Presumed valid actions since he has his own power plus the power delegated by Congress ◦ If the action is unconstitutional, then the whole federal government lacks power 2. Congress is silent on authority – “zone of twilight” ◦ Must rely on his independent powers, plus where he and Congress may have concurrent authority ◦ Concurrent or uncertain authority may allow President to have independent responsibility 3. President defies the express or implied will of Congress ◦ President authority is weakest: his power – Congress’s power = current power in this situation ◦ Action allowed only when the legislation is deemed unconstitutional ◦ “Lowest ebb” of power Youngstown Analysis ◦ Let’s apply this analysis to the holding in this case to see it in action ◦ Presidential Act: Seize the steel mills ◦ Ask: Does the constitution explicitly grant this power? – NO ◦ Truman tried to argue it was under “Commander in Chief” power because it has to do with war, Court says no ◦ Therefore, Not in Category 1 under Jackson’s categories ◦ Then Ask: Has Congress passed a statute that grants this power to the President? - NO ◦ Congress had specifically declined to authorize this type of action when it considered amendments to the Taft-Harley Act ◦ Falls into Category 3 – “Lowest ebb” ◦ Therefore, Court held that President had no authority to exercise this power MIDTERM REVIEW Overview of the Constitution The Constitution provides the rules for making and changing the law Where there is a conflict between new law and the Constitution, the Constitution wins Purpose 1. Create a national government – of laws, not of men 2. Govern the relationship between federal and state governments 3. Limit government power & protect personal rights Provides structure for how our government operates and divided it into a system with many powers reserved to the states and 3 Federal branches: (1) Legislative Has the power to make laws, declare wars, tax, and spend money (2) Executive Power to execute and enforce the laws passed by Legislative branch, appoint cabinet to carry out duties, and lead the armed forces (3) Judicial Read the text of the Constitution! Power to settle disputes and in cases of ambiguity, determine what the law is Key Concepts of Constitutional Law ◦ Separation of Powers: The division of a state's government into "branches", each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches ◦ Limited/Enumerated Powers: Powers granted to each branch of the government listed in specified Articles of Constitution ◦ Checks and Balances: A system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from having too much power. ◦ Lawmaking – House or Senate creates law, President can sign or veto ◦ Treaties – President negotiates, Congress ratifies with 2/3 vote ◦ War making – Congress declares war, President is Commander in Chief ◦ Federalism: A combined and compound mode of government that combines a general government with regional governments in a single political system, dividing the powers between the two ◦ Supremacy Clause – Federal Laws supersede state laws ◦ 10th Amendment – States have any rights not allocated to federal government The Federal Judicial Power 1. Article III sec. 1 - Creates SCOTUS and permits Congress to create inferior courts The Judiciary Act (1789) created and structured the judiciary into three-parts: (1) SCOTUS, (2) Circuit, and (3) The district courts. 2. Article III sec. 2 – Outline the kind of cases the judicial branch may hear ◦ Judicial power is limited/enumerated ◦ Original Jurisdiction ◦ Appellate jurisdiction ◦ Can only hear cases or controversies ◦ Rule: Judicial Review: Process by which SCOTUS rules on the constitutionality of actions taken by federal and state officials ◦ Process of judicial review has created the body of reported decisions ◦ This process renders the constitution enforceable as law ◦ Marbury v. Madison is the case that establishes this doctrine Interpretive Techniques 1. Textual analysis: 4 corners of the document 2. Original Meaning: Text and contemporaneous practices 3. Original Intent/Originalism: Purpose of framers and ratifiers determined from the text, legislative history, and historical context 4. General Intent: Broad view of the framers’ intent 5. Tradition: Established practice and values 6. Precedent: Prior rulings 7. Natural Law: Values that predate/underly the written Constitution 8. Pragmatism: Considering modern consequences on current social and economic considerations 9. Foreign Law: Comparing to other countries’ decisions 10. Process-Based Theory: Guaranteeing fair and equitable government processes Marbury v. Madison Background ◦ Facts: Marbury didn’t get his official notice for his new job, requests a writ of mandamus from the Court to receive the notice. Marbury said writ was authorized by Judiciary Act of 1789. ◦ Mandamus: Court order to act ◦ Holding: SCOTUS says Marbury has a vested right to the commission, a writ would be an appropriate remedy, but Judiciary Act of 1789 found unconstitutional because it granted SCOTUS original jurisdiction over cases involving writs of mandamus, so it contradicts the express language of Art. III. ◦ Interpretation: Largely based on original intent of the constitution; Bases it on the language of Article III Marbury v. Madison Takeaways ◦ Takeaways: Most important: SCOTUS has the power to review laws and legislative acts to determine their constitutionality ◦ ◦ Federal courts may review legislative actions to determine constitutionality and executive branch (nonpolitical conduct) to determine its legality/constitutionality ◦ In other words, SCOTUS’s role is judicial review U.S. Gov must be based upon the rule of law ◦ ◦ SCOTUS is striking down a law even though it benefits them – setting a precedent to follow Constitution! ◦ U.S. Constitution is the law of the land – Creates a hierarchy of law and Constitution trumps all ◦ Congress cannot expand scope of SCOTUS's jurisdiction beyond what is in Art. 3 sec. II ◦ *Note, the court could have decided the opposite and expanded the kinds of cases they hear, but they made this determination Martin v. Hunter’s Lessee ◦ In addition to being able to review the constitutionality of actions taken by Congress, the federal courts may review conduct engaged by states, including state court judgements that raise constitutional issues ◦ Facts: VA Supreme Court upheld VA law permitting confiscation of land. Problem is that state law conflicted w/ federal treaty securing land to pre-Revolution owners. ◦ Takeaways: ◦ This case established judicial review for state court decisions – A state court can make a decision on whether their statute is constitutional, but that decision is reviewable by SCOTUS ◦ SCOTUS has appellate court jurisdiction over state cases when the subject matter of the case falls within the Art 3 grants. – Which includes treaties (this case) ◦ However, SCOTUS does not have jurisdiction if question is one of State Constitution LIMITS ON CONSTITUTIONAL ADJUDICATION We established what SCOTUS can hear, but there are limits Issues of Justiciability ◦ A form of restraint ensuring parties have full incentive to litigate based on constitutional and prudential concerns Ask yourself: Can the court actually hear this case? 1. Standing 2. Ripeness 3. Mootness 4. Political Questions 5. Advisory Opinions Standing ◦ Plaintiffs must satisfy ALL THREE elements of standing to satisfy the Art. III requirements that federal courts have jurisdiction only over “cases and controversies”. ◦ Ask: Is this the proper party to bring this matter to the Court? ◦ 3 Requirements: ◦ (1) Injury in Fact: ◦ Person must be able to assert an injury in fact, which requires: ◦ (1) Particularized injury: Injury which affects plaintiff in a personal way ◦ (2) Concrete injury: One that exists in fact ◦ (2) Causation: ◦ Must be causal connection between: (1) injury and (2) conduct complained of - traceable to defendant, not some independent third party ◦ (3) Redressability: ◦ Ask: Would a favorable ruling eliminate/lessen the harm? Standing Cases MASS V. EPA ◦ MA suing EPA to get them to enforce emissions regulations under Clean Air Act ◦ Holding: Yes. There’s standing. ◦ Injury – Sea levels rising and MA coastline receding ◦ Causation – Lack of regulation causes more CO2 resulting in rising oceans and loss of coast ◦ Redressability – The remedy granted would not solve the entire issue but will partially redress ◦ Takeaways: ◦ Very expansive view of standing! ◦ Allows element of redressability to be partially redressed – does not have to be fully LUJAN V. DEFENDERS ◦ Executive branch changed interpretation of Endangered Species Act (ESA) from extending to all foreign nations to only being applicable within the US and high seas. ◦ Analysis: ◦ Injury: Possibly seeing the animals in the future is too speculative (not concrete) ◦ Causation: Defendants before the Court have no ability to control whether the projects are built or not ◦ Redressability: Secretary can’t ensure ESA followed abroad. ◦ Holding: No standing – Does not meet requirements for Injury and Redressability QUESTIONS?