Final Exam - December 13, 1999

• three essay questions
• closed book
• outlines - case names and holdings are good; as we learn the cases pay attention to what the votes are; professor prefers Emanuals outlines; Erwin Chemerinsy is best hornbook

John Adams is the outgoing, Federalist president; defeated by Republican Jefferson

• John Marshall was outgoing Adams secretary of state and the chief justice and author of this case
• James Madison is the new secretary of state in the new Jefferson administration
• Marbury was nominated as a DC Justice of the Peace
• Used a writ of mandamus - a writ issued from a higher court commanding performance of a certain action
• Commissions were not delivered for the appointments made by previous president. Jefferson said that because the commissions were not delivered, they were therefore invalid
• January 20, 1801 John Marshall nominated for chief justice, Feb 4 took office and remained SOS. Then on Feb 14 congress passed act to increase number of judges, Feb 17 Jefferson elected to house of Representatives, March 2 many of the federalist judges were confirmed, John Adams signed the commission, signed and sealed by John Marshal; March 3, James Marshall did not deliver all the commissions and Marbury did not get the commission. March 4, presidential inaugural and Jefferson said they were invalid. Case decided 1803.

Madison is the winner in this case

Steps of the argument in the case:

1. Has the applicant a right to the commission he demands?

- DECIDED: yes, Marbury has a right to the commission; it is a legal right

2. If he has a right, and that right has been violated, do the laws of this country afford him a remedy?

- DECIDED: yes Marbury is entitled to a remedy for the violation of this right; the court makes the determination of what is legal and what is political

3. If they do afford him a remedy, is it a mandamus issuing from this court? (is Marbury entitled to the remedy he applied for? A. did Marbury request the correct writ? B. Was this the right court?

- DECIDED: A: Marbury requested the correct writ. B. He asked the wrong court. He should have first approached the lower court, and then appealed it to the next court.

The Constitution and Statutes would give the court authority; in this case it was given by Section 13 of the Judiciary Act of 1789

In the case, there was a conflict between the Constitution and the Judiciary Act. Court concluded that the act was not constitutional and that the constitution should be the supreme law of the land.

Sitting next to Christi

Escape methods Marshall had:

• could have claimed conflict of interest
• right would have vested at delivery of the commission, by common law right does not vest until delivery; since commission was not delivered, there was no right
• court should not be involved in this type of thing

Escape methods Marshall had for § 13 of Judiciary Act:

Ways to interpret § 13:

• adds to courts appellate jurisdiction
• adds to courts original jurisdiction *

Ways to interpret Article III:

• allows SC to expand original jurisdiction
• forbids adding to original jurisdiction *

* This is what Marshall decided

US CONSTITUTION - know it

Article 1 - legislative powers

Article 2 - executive powers

Article 3 - judicial powers (supreme court original and appellate jurisdiction)

Article 6 - supremacy clause

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August 18, 1999

Office: Bergin 109

554-5731

lcgriffin@scu.edu

M 11-1

T 1-3; 5-6

W 11-12

Basis in Constitution for Judicial Review

Article 6 supremacy argument

Uphold law of land

"It is emphatically the province and duty of the judicial department to say what the law is." -Marshall in Marbury v. Madison

This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.

• this is what the people say now although Marshall did not say this, this strong at all.

1. Political question doctrine

1. from the court's perspective there are some things that are political, and because they are political the court does not have any business interfering with them
2. commentators say lines are very fuzzy and the court has not been consistent throughout the cases
3. reasons for why court would not want to have authority over political questions

1. text and structure of the contstitution gives certain decisions to other branches; because of what the Constitution says the court can not decide political questions

1. certain articles give certain branches certain rights and the courts can't interfere

1. there are certain practical reasons for the court's own well being not to interfere (prudential reasons)

1. questions of foreign affairs or war
2. sometimes it would look bad if the court were involved
3. too much controversy sometimes if courts were to get involved

1. sometimes the court will say they will not hear a case because it is a political question (Luther 49, Coleman 48, Goldwater 53, Nixon 54)
2. sometimes they will hear cases (Powell, Baker)
3. have to take a case to say they would not take the case

Luther v. Borden

1. involved Article IV, §4 the Guaranty Clause
2. about two groups in Rhode Island arguing about form of government
3. court found this case was nonjudiciable
4. almost always a
5. the court has consistently held and not reversed that cases under the guarantee clause are nonjusticiable OFTEN ON TESTS MULTIPLE CHOICE

1. FALSE because this case says the guarantee clause is non-justiciable

1. question of how long a proposed amendment to the Constitution would remain open to ratification
2. involved Article V - whenever two thirds of both houses shall deem it necessary shall propose amendments….
3. What is a reasonable period of time for ratification by the states for a constitutional amendment
4. Court ruled that this was non-justiciable

1. court ruled this way because: it would be bad for court to get involved with amending the Constitution; Article V gives power to amend constitution to a different branch of government (Congress)

1. deals with power to make and terminate treaties

1. from Article II, Section II, Clause II - president shall have power to make treaties; does not mention termination of treaties

1. held that this case is political and non-justiciable
2. because the court did not take the case, things stayed the way they were (president could terminate treaties)

1. there was a conflict between Article I, § 3, cl. 6 and a Senate Rule
2. textual - impeachment is the senate's job
3. prudential argument - it is counterintuitive to have courts decide this

Powell v. McCormack

1. court could hear case because house was putting more into Article II (extrra qualifications.
2. The big thing here was that he was being excluded BEFORE being accepted into the house. Would have been different if he had been accepted and then tried to kick him out.

Article IV, §4

The United States shall guarantee to every State in this Union a Republican Form of Government

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August 23, 1999

Distinguishing Luther v. Borden and Baker v. Carr: equal protection of the law was examined in ____ instead of Guaranty Clause as in Baker

See page 51 for review elements

Most important for equal review: Baker v. Carr (textual and prudental arguments)

Factors:

1. a textually demonstrable constitutional commitment of the issue to a coordinate political department
2. lack of judicially discoverable and manageable standards for resolving it

1. Standing

1. Constitutional Requirements

1. injury - Lujan (38)
2. causation - Warth (30); Allen (36)
3. redressability - Warth (30); Allen (36)

1. causation and redressability are hard to distinguish; will often consider them together

1. Prudential Limitation

1. third party - court will not allow people go to court to protect interests of third party
2. generalized grievances - Frothingham, Reservists, Richardson, Flast, (37)
3. plaintiffs outside "zone of interest" of statute

Lujan v. Defenders of Wildlife

Environmental groups brought action challenging regulation of the Secretary of the Interior which required other agencies to confer with him under the Endangered Species Act only with respect to federally funded projects in the United States and on the high seas.

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August 25, 1999

One of the prudential barriers the court has looked at is the third party rule. A second barrier is the generalized grievance barrier.

Prudential Limitations

1. third party
2. generalized grievance (page 37)
3. zone of interests (there are statutes where Congress says there are certain people that can bring lawsuits, but whenever they interpret one of these statutes, people that sue under the statute must be under the zone of interest that the statute was designed to protect

• Bannett (page 51)
• Akins (page 52)

Don't want lots of citizens making complaints about law; worry that citizens would be taking over the executive branch. Don’t want the citizens to come into court to challenge laws. This is a prudential concern that the court has.

Congress: list arguments as to why Congress has standing

• There is institutional injury: takes power out of Congress,
• against what framers originally said since they clearly divided the powers
• In Coleman they had standing; an act was passed although not everyone voted for it; in that case there was institutional injury
• If the procedure were valid, it would deny every Senator and every Representative any opportunity to vote for or against the truncated measure
• Because the opportunity to cast such votes is a right guaranteed by the text of the Constitution, I think it clear that the persons who are deprived of that right by the Act have standing to challenge its constitutionality.

Arguments why there is no standing.

• no institutional injury.
• So what if Congress says ___, what matters is there is no real injury

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August 30, 1999

Congress cannot act unless it has the constitutional authority to do so

Functionalist - says you need to be flexible in interpreting the constitution

Formalist - stick to what the Constitution says; interpret it narrowly; stick to the rules

10^th Amendment - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.