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8/3/2019 Conk Iran Print

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CONSTITUTIONAL LAW I NOTES

CHAPTER 1: THE FEDERAL JUDICIAL POWER

THE AUTHORITY OF JUDICIAL REVIEW Marbury v. Madison (Pg. 2) Martin v. Hunter Lessee (Pg. 10)

Declared SCs authority to review state court judgments The constitution presumes that the SC may review state court decisions Constitution creates a SC and gives congress discretion whether to create lower federal courts. If Congress does not establish such courts then the SC would be powerless to hear any cases except for t

few fitting within its original jurisdiction, unless it could review state court rulings.

SC review is essential to ensure uniformity in the interpretation of federal law. The very nature of the Constitution, the contemporaneous understanding of it, and many years of

experience all established the SCs authority to review state decisions Cohens v. Virginia (Pg. 10)

2 bros convicted of selling lottery tickets in violation of Virginia law. Ds sought review in SC: Said constitution prevented prosecution for selling tickets authorized by congre Virginia argued

o In general SC had no authority to review state court decisions and;o In particular, review was not allowed in criminal cases and in cases where a state government was a

party

SC reaffirmed constitutionality of 25 of the Judiciary Act and authority of the SC to review state courtjudgments.

Emphasized that state courts could not be trusted to adequately protect federal rights because in manystates the judges are dependent for office and for salary on the will ofthe legislature.

SC declared: criminal defendants could seek SC review when they claimed their conviction violatedConstitution

LIMITS ON THE FEDERAL JUDICIAL POWER (1) Interpretive; (2) congressional; (3) Justiciability (standing) (1) INTERPRETIVE LIMITS

5 Interpretive limits raise question of how Constitution should be interpretedo (1) Originalism,o (2) Original Meaning,o (3) Precedent,o (4) Process Based,o (5) Aspirationalism

What is Judicial Activism?o Judges arent just interpreting law, but creating ito Negative conation. Ex: abortion since it is not directly in the constitution.

(1) Originalismo Reading the constitution literally (4 corners), looks for what is explicitly statedo Benefits Consistency: Ex: Abortion isnt clearly in there so not constitutional issue to decide Clear Limits the power of judges, no accountability for judges, wont loose job Absence of accountability Not reflective of the people Judges are antidemocratic; more likely to go rogue; potentially more dangerous

Not reflective ofpeoples viewso Cons Founders could not have predicted everything, to literal and society changed


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Not consistent, must determine what was meant at the time Clear intent from framers Advantages: limits power of judiciary: counter majoritarian Creates level of certainty Leaves power to determine on ?? Critique: shouldnt be stuck with what people thought so long ago

o Why should these framers interpretation apply to us now?o Democracy is not just about majority rule. It protects minority. We want them insulated from

democratic pressure. Classic Example: Originalismbrown v. board of educationeven Scalia wh

is an originalist says except Brown, but if you are an originalist you must say separate but equal is fi (2) Original meaning

o What was done as matter of tradition? Ex: What would cruel and unusual punishment mean today? Framers would have been cool wit

taring, hanging, etc since they saw all that and were ok with it. What was permissible back then determines search and seizure

o If it was practiced in 1789 then all good even now (3) Tradition/Precedent (Stare Decisis)

o Tradition provides guidance and clarityo Economically people like stabilityo Abide by precedento Sometimes tradition is wrong

(4) Process-based theoryo Judicial minimalismcourt should be involved in making fair procedureso Courts role in interpreting is to make sure that a fair process is created for everyoneo Should only involve itself in decisions effect the decision making processo Not creating rights not explicitly found in the constitution

(5) Aspirationalism/Living constitutiono Constitution interpretation evolves over time (opposite of Originalism)o Looks to public policyo What should it say rather than what does it sayo What is consistent with the fundamental beliefs/ideas of the constitutiono We are not in 1700s anymore, look at what SHOULD constitution say rather than what is does say.o Living breathing documento What would be consistent with fundamental belief of constitution or spirit of it.

District of Columbia v. Heller(Pg. 13) ISSUE:

o Whether DC prohibition on possession of usable handguns in home violate 2A to the Constitution FACTS:

o Heller is D.C. special police officer authorized to carry handgun while on duty at the Federal Judiciacenter

o Applied for registration certificate for handgun he wished to keep at home, but D.C. refusedo Filed lawsuit seeking 2A grounds to enjoin city from enforcing bar on registration of handguns

licensing requirement which prohibits the carrying of firearm in home without license & trigger-lockrequirement

o DC statute prohibited handguns possession, crime to carry unregistered firearm, & handgunregistration prohibited. No person may carry handgun without license but chief of police may issuelicense for 1 year periods. Rules about locking up the gun

ARGUMENTS:o Petitioner 2A protects only right to possess & carry firearm in connection with militia service

o Respondent 2A protects individual right to possess firearm unconnected with service in militia, & use for

traditionally lawful purposes like self-defense within home


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HOLDING:o The Districts ban on handgun possession in home violates 2nd amendment, as does prohibition again

rendering any lawful firearm in home operable for purpose of immediate self-defense

REASONING:o 2A: Provides A well regulated Militia, being necessary to security of free state, right of people to

keep and bear arms, shall not be infringedo The constitution written to be understood by voters; words and phrases were used in their normal an

ordinary as distinguished from technical meaningso 2A is naturally divided into two parts Operative Clause Prefatory Clause (introduction) Does not limit or expand the scope of the operative clause

o Operative Clause (second part of 2A) Right of the people Codifies right of people Same language seen in 1st and 4th A, similar in 9 All three other instances unambiguously refer to individual rights, not collective rights, or

rights that may be exercised only through participation in some corporate body 6 other provisions mention the people term unambiguously refers to all members of the

political community, not an unspecified subset Militia in colonial times consisted of subset of people, male & able bodied & within certain a

range Literal interpretation fits poorly, protecting only right to keep & bear arms in organized

militia , fits poorly with the operative clauses description of holder of that right as thepeople

Start with strong presumption that 2A right is exercised individually and belongs to allAmericans

Keep and Bear Arms (Originalism interpretation) Interpret object of arms

No different from framing of constitution Weapons not specifically designed for military use & not employed in military capacity

Keep Arms and Bear Arms Keep = To retain; not to lose to have custody Keep Arms = to have weapons

Bear Arms same meaning as Keep arms Carrying of weapons outside of organized militia State constitutions have clauses that state bear arms to protect self and state

Meaning of operative clause Putting all textual elements together, see that they guarantee individual right possess & carry

weapons in case of emergency 2A text implicitly recognizes pre-existence of right & declares only that it shouldnt be

infringed Right wasnt unlimited just like 1A, doesnt protect right of citizens to carry arms for

confrontationo Prefatory Clause (1st part of 2A) A well regulated Militia, being necessary to the security of a free state Well Regulated Militia Unlike army & navy congress has power to create, militia assumed by Article 1 to already ex

Congress can call for militia, to organize it but not to organize a militia Well regulated militia implies nothing more than imposition of proper discipline & training

Security of a Free State Meant security of free polity, not security ofeach of several States as dissent argued Many reasons why militia necessary to security of free state

Useful in repelling invasions and suppressing insurrections


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Renders large standing armies unnecessary and argument that Alexander Hamilton madefavor of federal control over the militias

When able-bodied men of nation trained in arms & organized, better able to resist tyranno Relationship between Prefatory Clause and the Operative Clause Does the preface fit with operative clause that creates individual right to keep and bear arms? History shows tyrants eliminated militia consisting of able bodied men not by banning militi

but simply by taking away arms, enabling select militia or standing army to suppress politicaopponents

Prefatory clause announces purpose for which right was codified To prevent elimination of militia Preserving militia not only reason Americans valued the right

(2) CONGRESSIONAL LIMITS Exceptions & Regulations Clause

o Article III of constitution says SC shall have appellate jurisdiction, both as to Law and Fact, withsuch Exceptions, and under such Regulations as the congress shall make What is meaning of: SC Jx exists subject to exceptions & regulations as congress shall make? Does separation of powers limit ability of congress to restrict Supreme Court Jx? (1) One view believes words to provide Congress with broad powers to remove Matters from SC Why? Because congressional control is check on judiciary power Ex: Judiciary Act of 1789SC had authority only to review decisions of states highest cour

that ruled against federal constitutional claimnot until 20th C that SC given power to reviewdecisions of state court that ruled in favor of constitutional right

(2) Another view believe Congress is limited in ability to control SC Jx See exceptions intended to modify the word fact

Framers concerned about SC ability to overturn fact-finding by lower courtespeciallyjuries

Under this view, congress could create exception to SCs Jx for review of matters of facts, bucouldnt eliminate Courts appellate jx for issues of law.

These cases offer no clear principal as to what exceptions & regulations means Ultimately argument turns on disputes about meaning of Constitutions language, intent of framers, &

competing policy considerationso Ex Parte McCradle (Pg. 35) FACTS: McCardle was newspaper editor in Mississippi arrested by federal officials for writing

newspaper articles highly critical of reconstruction & especially of military rule of Southfollowing civil war

March 9, 1868 SC held oral arguments on the claim 3 days later Congress adopted rider to an inconsequential tax bill that repealed that part of 18

statute authorized SC appellate review of writs of habeas corpus

Congress stated purpose was to remove case from SCs docket & thus prevent Court frompotentially invalidating Reconstruction

President Johnson vetoed attempted repeal of SC jurisdiction Congress immediately overrode Johnsons veto power Seems like a 1st A violation

What is his case based on? Congressionally passed statutethis is why he is able to do writ ofhabeus corpus

ISSUES & HOLDINGS Whether congress can withdraw jurisdiction from SC after jurisdiction has been given?

Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congrethe express power to make exceptions to that appellate jurisdiction.

Court must always determine first if it has jurisdiction to review a case. RULES:


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Legislature has complete control over organization & existence of court & may confer orwithhold right of appeal from its decisions

REASONING: Language of proviso shows plainly: doesnt intend to withhold appellate Jx except as means

an end

Purpose is to deny pardons granted by President effect which this court adjudged them tohave

Provision declares that pardons shall not be considered by this court on appeal SC already decided it was their duty to consider them & give them effect, in cases like the

present, as equivalent to proof of loyalty Court has jurisdiction of cause to given point; but when it ascertains that certain state of thing

exists, its jx is to cease & it is required to dismiss the cause for lack of jx Not exercise of acknowledged power of congress to make exceptions & prescribe regulation

appellate power Congress has already provided that SC shall have jx of judgments of Court of Claims on app

Can it prescribe rule in conformity with which court must deny to itself the jx thusconferred because & only because its decision in accordance with settled law, must beadverse to government and favorable to the suitor

It is intention of Constitution that each of great co-ordinate departments of government(legislative, judicial, executive) shall be in its sphere independent of the others

Executive alone is entrusted power of pardon, and it is granted without limit Unconstitutional Would create a circular pardon no pardon game

Congress cannot overturn past supreme court decision on existing lawo Robertson v. Seattle Audubon Society (pg. 39) SC distinguished this case from Klein Act required Bureau of Land Management to officer specified land for sale & imposed restrictio

on harvesting from other lands Act also noted two pending cases & said Congress hereby determines & directs that manageme

of areas according to subsection (b)(3) & (b)(5) of this section on specified land is adequateconsideration for purpose of meeting statutory requirements that are basis for two lawsuits

SC rejected argument that Congress was directing outcome of pending litigationHeld congreshad changed law itself and didnt direct findings or results under old law

Court applied Klein to situation where Congress directs judiciary as to decision making underexisting law & dont apply when Congress adopts new law court found new law statute wasconstitutional

(3) JUSTICIABILITY LIMITS 5 Major Doctrines: Prohibition against following doctrines:

o (1) Advisory opinions (can hear actual case and controversy only)o (2) Standingconstitutional and prudentialo (3) Ripenesso (4) Mootnesso (5) Political questiono (6) Another exception not in book is: Collateral consequences doctrinedont worry about it.

Article III 2 authorizes federal courts to hear several types of cases and controversies SC interpreted words as giving rise to series of limits on federal judicial power (limits not expressly

mentioned in text of Constitution or by framers in drafting the document)o Limits Called Justiciability Doctrine Limits Are all judicially created limits on the matters that can be heard in federal courts Constitutional= Congress cannot overrideCases & Controversies requirement Prudential= based on prudent judicial administration and can be overridden by Congress since

they are not constitutional requirements


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Congress can override prudential but not constitutional limits Policy Underlying Justiciability Requirements

o Doctrine shouldnt prevent federal courts form performing essential function of upholding Constitut& preventing & redressing violations of federal law but need some limits still.

o (1) Separation of Power through cases & controversies Justiciability Doctrines help define judicial rolewhen appropriate for federal court to review

matter & when necessary to defer to other branches of governmento (2) Conserve Judicial Resources Focus attention on matters most deserving of review Example: mootness allows courts to dismiss cases that are not live controversies

o (3)Improve Judicial Decision Making By providing federal courts with concrete controversies best suited for judicial resolution Cases & Controversies limit limits questions presented in adversary context in form historicall

viewed as capable of resolution through judicial process Federal Courts have limited ability to conduct independent investigations; they must depend

parties to fully present all relevant information to them: Adverse parties, with state in outcomof litigation, will perform this task best.

o (4)Promote Fairness: Especially to individuals not litigants before court Doctrines generally prevent federal court from adjudicating rights of those who are not parties to

lawsuit

So reserve court review for situations where truly necessaryo (5)Prevent & Remedy Violations of Federal Lawo (6)Enjoin & Redress Constitutional Violation Inflicted by All Levels of Government & Government

Officers

Avoidance Principleo In addition to the doctrines the SC has said that it would follow certain principles of avoidance to

ensure that it will reach constitutional questions only when necessaryo Rules under which avoided passing on large part of all constitutional questions pressed upon it for

decision: The court will not pass upon the constitutionality of legislation in a friendly non adversary

proceeding declining because to decide such questions only in the last resort

Will not anticipate a question of constitutional law in advance of the necessity of deciding it Will not formulate rule of constitutional law broader than required by precise facts to which is

applied Will not pass upon a constitutional question although properly presented by the record, if there i

also present some other ground upon which the case may be disposed of. Will not pass upon validity of statute upon complaint of one who fails to show injury by its

operation. Must have some sort of injury not just political move

Will not pass upon constitutionality of statute at insistence of one who has availed himself of itsbenefits

When the validity of an act of the congress is drawn into question, and even if a serious doubt ofconstitutionality is raised, it is a cardinal principle that this Court will first ascertain whether aconstruction of the statute is fairly possible by which the question may be avoided

(1) Prohibition of Advisory Opinion: (must be actual controversy)o Core of Article IIIs requirement for cases & controversies is federal courts cant issue advisory

opinionso Jefferson wrote and asked for help from SC: dispute over neutrality provision over France and Engla

he had question about legal position of US in that conflict SC couldnt answero Maintained legitimacy by not respondingo Benefits of Advisory Opinion: Guidance to legislature will prevent enactment of unconstitutional laws Save time & effort of legislature to adopt statutes soon to be invalidated by courts Allows legislature to correct constitutional infirmities at earliest possible time


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o Still Cant Allow Advisory Opinion Because: Separation of powers maintained by keeping courts out of legislature process It wastes time and money; waste of political & financial capital; creates abundance of work SC is in high demandonly have them decide on cases that are super important

You get better decisions when cases are live controversiesworks with adversarial processo Criteria to Avoid Being an Advisory Opinion: (1) Actual dispute between adverse litigants How to decide what is actual dispute? See pg 54look at mootness, standing, ripeness

(2) Substantial likelihood that federal court decision in favor of claimant will bring change or haveffect

o Hayburns case (Pg. 42/43) Court considered whether federal courts could express nonbinding opinions on amount of benefi

owed to Revolutionary War Veterans Congress adopted law permitting veterans to file pension claims in US Circuit Courts Judges were supposed to inform secretary of war about nature of claim & how much $ to pay Law wasnt unconstitutional per se, but making recommendations wasnt judicial nature It would violate separation of powers b/c judicial action might be revised & controlled by

legislature & by officer in executive departmentinfringe in independence of judicial powero Plaut v. Spendthrift Farm, Inc. (Pg. 43)

FACTS: The PlaintiffPetitioner, Plaut sued Spendthrift Farm (Respondent), under Section: 10 of thSecurities Exchange Act of 1934. The suit was dismissed for not being filed in a timely fashi In 1991, the SC ruled: actions brought under securities laws, specifically 10(b) & rule 10(b)(

had to be brought w/in 1 year of discovering facts giving rise to violation & three years ofviolation

Congress amended law 27A(b) Allows cases filed before decision to go forward if could have been brought under the pr

law Effect of statute was reopening actions dismissed under Courts prior ruling

PAST RESTRICTIONS: Two types of legislation require federal courts to exercise judicial power in manner Article I

forbids (1) US v. Kleinrefused to give effect to statute said to prescribe rules of decision to

Judicial Department of government in cases pending before it later decisions made cleathat Kleins prohibition doesnt take hold when Congress amends applicable law

(2)Hayburns CaseCongress cant give right to review decisions to Executive Branchofficials

RESTRICTIONS HERE: Here statute is different b/c only courts are involved; no officials of other departments However, still offends Article III b/c framers gave Federal judiciary power not only to rule o

case but to decide it subject to review only by superior courts in Article III hierarchy. By commanding reopen final judgments, Congress violated fundamental principle above.

ISSUE: May Congress require Article III courts to reopen cases on which they have passed judgment

HOLDING: No, section 27A(b) is unconstitutional to the extent that it requires federal courts to reopen fi

judgments entered before its enactment How advisory opinion? If congress can set aside any judgment of sc it makes all sc opinions

advisory since statute here overturned decision & gave relief to party that Court said wasentitled to none

PROBLEMS WITH HOLDING pg. 55 & 56 Congress always has ability to overturn Supreme Court statutory interpretations by amending

law

Retroactive legislation??


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Congress can change law for future cases but not for old cases.o Notes on Advisory Opinion (Pg. 44)o Nashville, C. & ST. L. RY & Wallace (Pg. 45) P wants declaratory judgment that tax was un-constitutional burden on interstate commerce SC explained that because matter would have been justiciable as request for injunction, suit for

declaratory judgment was capable of federal court adjudication The constitution doesnt require case or controversy be presented by traditional forms of procedu

invoking only traditional remedies. Case was justiciable as long as it retains essentials of adversary proceeding, involving real not

hypothetical controversyo Declaratory reliefThought of as advisory opinion in past but now courts think can be brought as lo

as case of controversyvigorously disputing it and imminently going to go to court (ex: copyright tsomeone infringed your rightsother party can say I got the cease and desist letter and these peopleare going to sue me, so he can bring declaratory relief action)

o Reasoning: Congress may pass retroactive legislation that affects cases still pending appeal. Howevethis amendment requires cases to resume prosecution after judgment has been rendered. Judgmentconclusively resolves the case. The statute in question offends this postulate.

o Justice Scalia (J. Scalia) argues Congress violated separation of judicial & legislative powers, byrequiring courts to set aside final judgments, which framers of constitution envisioned as dispositive

(2) Standing Requiremento Determination of whether specific person is proper party to bring matter to court for adjudicationo Questions of standing is whether litigant entitled to have court decide merits of dispute or particular

issueso Is about separation of powers and proves there is actually a case/controversy Values Served by Limiting Standing (1) Promotes separation of powers (2) Serve judicial efficiency by preventing flood of lawsuits by ideological state holders in

outcome (3) Improve judicial decision making by ensuring specific controversy before court & advoca

with sufficient personal concern to effectively litigate matter

(4) Serves value of fairness by ensuring people will raise only own rights & concerns & canintermeddle trying to protect others who dont want protection offered Values Limited by StandingBad part of having standing requirement Where there is right there has to be remedyM v. Madisonthis requirement takes that awa

What is happening may be completely wrong and unlawful but court dismisses b/c D doesnhave standing. Gets in the way of short term justice being done.

Constitutional vs. prudential standing Unlike constitutional limits, courts can override prudential limits with statutes.

o Constitutional Standing Requirements (injury/causation/redressability) Limits federal-court jurisdiction to cases and controversies (1) Show injury Suffered or imminently will suffer an injury (2) Causation that your injury is fairly traceable to Ds conduct

(3) Redressability Will redress the harm that you are suffering

(2) & (3) seen as single test: Did D cause harm that limiting D will remedy injury?o Allen v. Wright(Pg. 46)parents seeking to integrate schoolscausation was big issue? FACTS In 1976 respondents challenged the IRS guidelines and procedures and filed action P are parents of black children who at time complaint filed were attending public schools in

seven states undergoing desegregation


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Brought nationwide action on behalf of themselves and their children and other parents of blchildren in similar situations

Allege that many racially segregated private schools were created or expanded in theircommunities at time public schools were undergoing desegregation

ISSUE Whats required for party to have standing to bring suit? I.E. Whether Ps have standing to

bring suit. ARGUMENTS Respondents allege private schools received tax exemption either directly or through the tax

exempt status umbrella, government conduct harms them in 2 ways (1) Constitutes tangible federal financial aid and other support for racially segregated

educational institutions, and

(2) Fosters and encourages the organization, operation, and expansion of institutesproviding racially segregated educational opportunities for white children avoidingattendance in desegregating public schools

RULES IRS Code

o IRS denies tax exempt status under the IRS code, and hence eligibility to receivecharitable contributions deductible from income taxes to racially discriminatory privaschools

o Requires school show that it admits the students of any race to all the rights privilegeprograms and activities generally accorded or made available to students at that schoo

o Failure to comply results in the proposed revocation of tax-exempt status Article III requires litigant have standing to invoke power of federal court Standing Requirements mentioned above

HOLDING No standing. Reversed (for defendant Allen)

REASONING: Neither claim asserts judicially cognizable injury Asserting right to have government act in accordance with law is not sufficient standing

alone to confer jurisdiction on a federal court

Do not have standing to litigate claims based on stigmatizing injury of racial discriminatio Such injury accords basis for standing only to those persons who are personally denie

equal treatment by the challenged discriminatory conduct

By recognizing Ps standing would extend it to all members of particular racial groupsagainst which the government was alleged to be discriminating regardless of the locationthat schoolo Person in Maine could challenge school in Hawaii

Claim of injury to childrens diminished ability to receive education in racially integratedschoolo Cannot support standing because injury alleged is not fairly traceable to Government

conduct respondents challenge as unlawfulLine is attenuatedo Results from the independent action of some third party not before the courto Would be traceable if enough discriminatory private schools get tax exemptions in P

area for withdrawal of exemptions to have appreciable difference in public schoolintegration

o Entirely speculative whether withdrawal of tax exemption from any particular schoolwould lead the school to change its policies

CLASS DISCUSSION: Standing inquiry requires careful judicial examination of complaints allegations to

ascertain if particular P is entitled to adjudication of particular claim asserted. Is injury toabstract or otherwise not appropriate to be considered judicially cognizable? (pg 48)

Arguments:


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o (1) Harmed directly by mere fact of Government financially aid discriminatory schoo Not judicially cognizable injury

o (2) Federal tax exemptions to racially discriminatory private schools in theircommunities impair their ability to have public school desegregated. (HOW???) Not fairly traceable to assertedly unlawful conduct of IRS

STEVENS DISSENT: (1) respondents adequately alleged injury in fact

o Subsidy for withdrawal of white kid can have same effect as penalty for admitting blakid

(2) Injury is fairly traceable to conduct they claim to be unlawfulo Proper question is: has govt. created subsidy that promotes racial segregation? Wheth

causal connection between injury & wrong has been adequately allegedo We know when subsidy makes given activity more or less expensive, injury can be

traced to subsidy for purposes of standing analysis because of resulting increase ordecrease in ability to engage in activityex: subsidies given to private schoolspracticing racial discrimination When something becomes more expensive, less of it will be purchased So if racially discriminatory private schools lose cash grants that flow from

operation of the statues, the education they provide will become more expensive ahence less of their services will be purchased.

(3) Separation of powers principle doesnt create jurisdictional obstacle to considerationsthe merits to their claim.o Requiring more direct causal connection just b/c court is troubled by separation of

power implication confuses standing doctrine with Justiciability of the issues thatrespondent seeks to raise. Purpose of standing is to measure Ps stake in outcome, nocourt has authority to provide it with the outcome it seeks.

Massachusetts v. Environmental Protection Agency (Pg. 53)Sovereign State Seeking Relief FACTS

Well documented right in global temperatures contributed to carbon emission (green hougas)

Group of State, Local Governments, & Private Organizes sue EPA to comply with CleanAir Act to regulate emissions of four green house gasses, including carbon dioxide

ISSUE: Whether petitioners have such personal stake in outcome of controversy to maintain

standing ARGUMENTS

EPA correctly said court cant address two issues below unless at least one petitioner hasstanding to invoke courts jurisdiction under article III of constitution.

EPA argues no standing b/c greenhouse gas emissions inflict widespread harmo COURT: Not true. Massachusetts has special position & interest here. Es it is a

sovereign State & not private individual (like inLujan) but must take into consideratithat state owns great deal of territory alleged to be affected

o States give up many of their rights to become part of the union, cant invadeneighboring state to stop greenhouse gas emissions, cant negotiate emissions treatywith foreign nations

o Therefore, Massachusetts requires special solicitude in standing analysis especiallysince risk of harm to Massachusetts is both actual and imminent & there is alsosubstantial likelihood that judicial relief requested will prompt EPA to take steps toreduce that risk

(1) INJURY (Suffering or imminently will suffer an injury) Petitioner says only hints at environmental damage yet to come


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Just because climate-change risks are widely shared doesnt minimize MAs interest inoutcome of litigation. Severity of injury will increase over time for MA leading to coastloss.

(2) CAUSATION EPA doesnt dispute causal connection between man-made greenhouse gas emission and

global warming but still says regulation of new cars would be so insignificantly topetitioners injuries that agency cannot be hauled into federal court to answer for them

For same reason: EPA doesnt believe any realistic possibility exists that relief petitionerseek would mitigate global climate change and remedy their injuries. (China & India

implication) EPAs argument rests on erroneous assumption that small incremental step can never be

attacked in federal judicial forumbesides, massive problems are never solved in oneswoop, they are whittled away over time, refining approaches, etc.

Further, reducing domestic car emissions isnt tentative step since 3rd largest user in worl (3) REDRESSABILITY

Just because effectiveness would be small doesnt mean cant hold EPA accountable Domestic emissions reduction would slow global emissions no matter what happens

elsewhere HOLDING

EPA has to abide by statutory requirement or justify not doing so DISSENT

Regulating Carbon Emissions is policy decisions of Executive & Legislative Branches wconsider regulator, legislative, and treaty based means of addressing global climate chang

P probably brought suit to courts b/c unhappy with slow process of other branches (1) Injury

o Court changes rules since have State litigantrelaxes Article III standing requiremen Makes reader think Congress meant to include States as litigants in the Act but

Congress knows how to do this when it wants, here, no mention of States allowedpetition

o Focuses on States loss of coastal land as injury in fact but doesnt stay consistentthroughout analysisredressability is supposed to correct injury in factnot so here

o P supposed to be affected in personal & individual way & seek relief that directlytangibly benefit him in manner distinct from its impact on public at large Global warming is harmful to humanity at large

(2) Causationo Greenhouse Gas is spread throughout the atmosphere so no direct link

(3) Redressabilityo See end of Injury analysis above

o Notes on Constitutional Standing Requirements: Injury, Causation, & Redressabilityo (1) Injury: City of LA v. Lyons (Pg. 60)

FACTS: Lyons stopped by D officers for traffic violation & although Lyons offered no resistance

threat whatsoever, the officers without provocation or justification, seized Lyons & applichokehold rendering him unconscious & causing damage to his larynx

Amended complaint alleged that 10 chokehold related deaths had occurred CAUSE OF ACTION:

Complaint for damages, injunction, and declaratory relief RULES

Standing: Injury, causation, redressability HOLDING

Absent sufficient likelihood that chokehold will happen again, Lyons is no more entitled injunction than any other citizen of Los Angeles


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Federal court cant entertain claim by any or all citizens who no more than assert thatcertain practices of LEOs are unconstitutional

REASONING Lyons standing depends on if likely to suffer future injury from chokeholds by police

officers

Fact that Lyons may have been illegally choked does nothing to establish real & immediathreat that he would again be stopped for traffic violation, or for any other offense, by anofficer who would illegally choke him to unconsciousness without any provocation orresistance on his part

To establish an actual controversy he would not only have to allege that he would haveanother encounter w/ the police but also to make the incredible assertion either:o All police officers in LA always choke any citizen who they encounter OR;o City ordered or authorized LEOs to act in such a manner

DISSENT It is unprecedented & unwarranted to hold that since no one can show that he will be

choked in future, no one has standing to challenge constitutionality of policy Lujan v. Defenders of Wildlife (Pg. 62) FACTS

Challenge to rule transmitted by Secretary of Interior interpreting Section 7 of EndangereSpecies Act concerning when federal government could comply with Endangered Specie

Acto Under rule, federal govt. would comply with Act only for actions taken in US or on

high seas

P sues because lack of consultation with respect to certain funded activities abroadincreases the rate of extinction of endangered or threatened species

ISSUE Does P have standing to bring claim against Lujan?

RULES Desire to use or observe animal, even for esthetic purposes, is cognizable interest for

standing

But Injury in Fact Test requires more than injury to cognizable interest.o Requires party seeking review himself be among the injured

Past exposure to illegal conduct doesnt itself show present case or controversy regardinginjunctive relief if unaccompanied by any continuing present adverse effects

Standing is not ingenious academic exercise in the conceivable, but requires, at thesummary judgment stage, factual showing of perceptible harm

Redressability: Suits challenging not specifically identifiable Government violations of labut particular programs agencies established to carry out legal obligations of law, rarely iever appropriate for federal court adjudication (resolving case)

HOLDING Besides failing to show injury respondents failed to demonstrate redressability

REASONING Injury

o Affidavits contain no facts showing damage to species will produce imminent injury P Such someday intentions without any description of concrete plans or indeed even

any specification do not support a finding of the actual or imminent injuryo Goes beyond limit & into pure speculation & fantasy to say anyone who observes or

works with endangered species anywhere in world is appreciably harmed by singleproject affecting some portion of that species with which he has no more specificconnection

Redressability


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o The district court could accord relief only against the Secretary: he could be ordered trevise his regulation to require consultation for foreign projects

o This would not remedy respondents alleged injury unless the funding agencies werebound by Secretarys regulation which is very much an open question

o Agencies were not parties to suit, and no reason they should be obligated to honorincidental legal determination the suit produced. Besides, agency only supplies afraction of the aid.

o No evidence to indicate that the projects named will either be suspended or do less hato listed species if that fraction is eliminated

DISSENT Fact finder could conclude P would return soon satisfying imminent or actual standard Past trips and background could lead to conclusion that they would return soon Past trips demonstrate Ps requisite resources & personal interest in preservation of speci

endangered by projects to make good on their intention to return. Nothing preventing retu

Courts demand for detailed descriptions of future conduct will do little to weed out thosewho are genuinely harmed from those who are notdissent b/c majority opinion is slashburn expedition through laws of environmental standing

Very essence of civil liberty certainly United States v. Hays (Pg. 65) Shaw v. RenoHeld P may state claim for relief under Equal Protection Clause of 14A by

alleging that State adopted reapportionment scheme so irrational on face that is seen as effoto segregate voters into separate voting districts b/c of race and that separation lacks sufficienjustification

Hays claims Louisianas congressional districting plan is such a racial gerrymander (achieveresult through manipulation) that it violates the 14A

Appellees dont live in district that is primary focus of theirracial gerrymandering claim & havent otherwise shown that personally have been subjected to a racial classification

o Therefore lack standing to bring this suit Demonstrating individualized harm that standing doctrine requires may not be easy in racial

gerrymandering context, as it will frequently be difficult to discern why particular citizen waput in one district or another

WhereP resides in racially gerrymandered district, however, P has been denied equal treatmbecause of legislatures reliance on racial criteria, & so has standing to challenge legislatureaction

WhereP does not live in such district, he or she does not suffer those special harms, and anyinference that P has personally been subjected to a racial classification would not be justifiedabsent specific evidence tending to support the interference

Federal Election Comm. v. Akins (pg. 66) Court held that Congress by statute could create right to information & denial of such

information was injury sufficient to satisfy Article III Group of voters brought action challenging decision by Federal Election Commission that

American Israel Public Affairs Committee is not political committee subject to regulation &

reporting requirements under the Federal election campaign act Federal statute authorized suit by any person aggrieved by a federal Election Commission

decision. Court granted standing & concluded that congress had created right to information about

political committees and Ps were denied information by virtue of Federal ElectionCommissions decision

Statute created right to information albeit a right that would not exist without the statuteo (2) Causation & (3) Redressability There are 2 other requirements for standing The P must allege and prove that the D caused the harm So that it is likely that a favorable court decision will remedy the injury


15/93

2 arguments (1) Requirement simply implements prohibition against advisory opinions; if a federal court

decision will have little effect, if it will not redress the injuries, so it is advisory opinion (2) Can be argued that causation & redressability are inappropriate determinations to make o

basis of pleadings since all decisions about standing initially are made on basis of pleadings,assuming all allegations within them to be true

Criticism is redressability is factual question that shouldnt be made at outset of lawsuit Traditionally, courts consider if equitable relief will have desired affect at remedy state,

after opportunity for discovery & hearing on merits.

Linda R.S. v. Richard D. (Pg. 67) Unwed mother sued to have father of her child prosecuted for failure to pay child support Challenged Texas policy of prosecuting fathers of legitimate children for not paying required

support, but not prosecuting fathers of illegitimate children SC dismissed the case for lack of standing

Injunction commanding state prosecutions would not ensure that mother would receive aadditional child support payment

Warth v. Seldin (Pg. 67) Several Ps challenged constitutionality of zoning practices in Penfield, NY Ps were people who wanted to live there by couldnt b/c zoning practice prevented

construction of multifamily dwellings & low income housinghome builders associations a

joined as P Court held no standing b/c Ps couldnt show that appropriate housing would be constructed

without exclusionary zoning ordinances. Low-income residents might not be able to affordliving there even if town zoning ordinances invalidated. Builders might not choose to buildthere.

Simon v. Eastern Kentucky Welfare Rights Organization (Pg. 67) Federal law required hospitals to provide free care to indigents to receive tax exempt status Ps claimed that they requested & were denied needed medical care by tax exempt hospitals Challenged IRS rule limiting amount of free medical care hospitals receiving tax exempt stat

were required to provide: Under new provisions only emergency medical treatment of indigerequired

SC denied standing concluding it was purely speculative whether new rule was responsible fdenial of medical services and complaint suggests no substantial likelihood that victory in suwould result in respondents receiving hospital treatment they desire

Duke Power Co. v. Carolina Environmental Study Group (Pg. 68) Ps challenged constitutionality of Price-Anderson Act, which limits liability of utility

companies in event of nuclear reactor accident Claim was that Act violated Due Process because it allowed injures to occur without

compensation D moved to dismiss on ground that injury was purely speculative SC found standing to exist because construction of nuclear reactor in Ps area subjected them

many injuries including exposure to radiation

Court concluded that causation & redressability tests were met because but forPrice-AndersAct reactor would not be built & Ps would not suffer these harms Prudential Standing Requirements

o (1) Prohibition of 3rd party grievances / standing Party generally may assert only own rights and cant raise claims of third parties not before the

courto (2) Prohibition of generalized grievances P cant sue as taxpayer who shares grievance in common with all other taxpayers

o (3) P must raise claim within zone of interest protected by statute in question Arises almost exclusively in administrative law

o (1) Prohibition on 3rd Party Standing


16/93

SC stated that even when P has alleged injury sufficient to meet the case or controversyrequirement, court has held that P generally must assert his own legal rights and interests, & canrest claim to relief on legal rights or interests of third party

P can assert only injuries that he or she has suffered Exception: Situations where P meets other standing requirements may present claims of a third

party Singleton v. Wulff(pg. 69) FACTS

Case involves States unconstitutional interference with decision to terminate pregnancy Missouri statute doesnt give Medicaid benefits to needy persons for abortions that are no

medically indicated

P says provided & anticipates providing abortions to welfare patients eligible for Medic P says all Medicaid applications filed in connection with abortions performed by them w

refused by D, responsible state official, in reliance on challenged state statute ISSUE

Whether the plaintiff as physicians who perform non-medically indicated abortions, havestanding to maintain the suit (as opposed to women getting abortions)

2 distinct standing issueso (1) Whether Ps allege injury in fact i.e. Whether Ps have sufficiently concrete

interest in outcome of suit to make it case or controversy subject to federal courts Art

III jurisdictiono (2) Whether, as prudential matter, Ps are proper proponents of particular legal rights

which they base their suit HOLDING

generally appropriate to allow physician to assert right of women patients as againstgovernmental interference with abortion decision

ISSUE (1) RULE & ANALYSIS No doubt that P suffers concrete injury from statute b/c facts show that Ps have perform

& will continue to perform operations they can be reimbursed for if statute didnt exist

Federal Courts must hesitate before resolving a controversy, even one within theirconstitutional power to resolve, on the basis of the rights of third persons not parties to thlitigation

ISSUE (2) RULE & ANALYSIS CONSIDERATIONS FOR GENERAL RULE:

o (1) courts shouldnt adjudicate rights unnecessarily, & may be fact that holders of thorights either do not wish to assert them, or will be able to enjoy them regardless ofwhether the in court litigation is successful or not

o (2)Third parties themselves usually will be the best proponents of their own rights GENERAL RULE

o Ordinarily one cant claim standing in Court to vindicate constitutional rights of 3rdparty

o Exception to prohibition of 3rd party standing: 2 factual elements: (1) Relationship oflitigant to person whos right seeking to assert. May be that

former is fully, or very nearly, as effective a proponent of the right as the latter (2) Ability of third party to assert own right. Even where relationship is close,

reasons for requiring persons to assert own rights will generally still apply. If somgenuine obstacle to such assertion, third partys absence from court loses itstendency to suggest that his right is not truly at state or important to him & party court becomes by default the rights best available proponent

APPLICATIONo Woman can't safely secure abortion without aid of physician, & poor woman cant

easily secure abortion without physicians being paid by Stateo Womans exercise of her right to an abortion, is therefore necessarily at stake here


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o Physicians intimately involved in abortiono Woman may not be able to assert her own rights May hesitate b/c of desire to protect privacy of decision from publicity of court Imminent mootnesstechnically b/c only few months before losing right to

abortion Woman who is no longer pregnant may nonetheless retain right to litigate point

because it is capable of repetition yet evading review (3) Overbreadth Doctrine (3rdexception in addition to the two from Singleton)(Pg. 69

Footnote 30)

D to whom law constitutionally may be applied may challenge law as regulatingsubstantially more speech than Constitution allows to be regulated

Only if violates other persons 1st A rightExample: Charity suing raised 1st A of client Application of Singleton Exceptions to determine if P can sue on behalf of 3 rd party: Barrows v. Jackson (Pg. 71)

Barrows, white person who signed racially restrictive covenant, sued for breach of K forallowing nonwhites to occupy property

As defense, Barrows raised right of blacks, not parties in lawsuit, to be free ofdiscrimination

Courts allowed 3rd party standing b/c difficulty if not impossible for person whose rights asserted to present grievances before any court since blacks werent parties to covenant,

they didnt have legal basis for participating in breach of K suit Craig v. Boren (Pg. 72)

Oklahoma law permitted women to buy 3.2% beer at age 18 but men couldnt until 21 Bartender challenged law on behalf of male customers between age 1821 & said suffer

economic loss from law thus fulfilling injury requirement

Court allowed standing b/c vendors & those in like positions uniformly permitted to resisefforts at restricting operations by acting as advocates for rights of 3rd parties seeking accto their market or function

Gilmore v. Utah (Pg. 72) Gilmore sentenced to death in Utah & chose not to pursue habeas corpus relief in federal

court

Mother sued for stay of execution on his behalf Court refused claim for lack of standing b/c D waived rights by not pursuing them CONCURRING OPINION

o Knowing & intelligent waiver bars next friend application filed by mother Elk Grove Unified School District v. Newdow (Pg. 72)

FACTSo Dad, atheist, sued school district on behalf of daughter for use of under god in pled

of allegiance b/c district implemented State Act requiring every public elementaryschool to being each day with appropriate patriotic exercise

o 1st Opinionappeals court unanimously held Newdow had standing as parent tochallenge practice interfering with his right to direct religious education of his daught Held State Act & district policy as violations if 1st Amendment

o After 1st OpinionMom, Banning, filed motion to dismiss complaint b/c even thougparents shared physical custody, she had exclusive legal custody including sole right represent daughters legal interests & make all decisions about her education

o Superior Court entered order enjoining Newdow from suing as daughters next frien Still didnt answer question of Newdows Article III standing

o 2nd OpinionAppeals court said grant of sole legal custody didnt deprive Newdow oArticle III standing to object to unconstitutional govt. action affecting his child Retains right to expose child to particular religious views even if those views

contradict mothers & Bannings objection as sole legal custodian doesnt defeatNewdows right to seek redress for alleged injury to his own parental interests


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ISSUEo Whether Newdow has standing to invoke Jx of federal courts

HOLDINGo Lacks prudential standing so reverse Appeals decision

RULEo In general, appropriate for federal courts to leave delicate issues of domestic relations

state court b/c we recognize domestic relation exception that strips federal courtspower to issue divorce, alimony, & child custody decrees

REASONINGo Here, Newdows standing derives entirely from relationship with daughter but lacks J

to litigate as next friend so improper for federal courts to entertain claim by P whostanding to sue is founded on family law rights that are in dispute when prosecution olawsuit may have adverse effect on person who is source of Ps claimed standing

o Vast difference between Newdows right to communicate with his child which CAlaw & 1st A recognizeand his claimed right to shield daughter form influence atschool

o Therefore, lacks prudential standing b/c deprived under CA law of right to sue as nexfriend

DISSENTo Dissent because majority erects novel prudential standing principle to avoid reaching

merits of constitutional claimconclude that for willing students to participate inPledge of Allegiance with words under God doesnt violate 1 st A

o Court doesnt dispute that respondent Newdow satisfies Article III standingo Lack of prudential standing limitation loosely based on domestic relation exception to

diversity-of-citizenship jurisdiction & prohibition of litigants raising anothers rights (1) Domestic relation exception is not prudential limitation on federal Jx (2) Court bases new prudential standing in part on criticisms of Appeals

construction of state law coupled with prudential principle prohibiting 3rd partystanding

o Court of Appeals had it right, Newdow has constitutional standingbut claim isntviolation of 1stA so shouldnt have any redressability

CLASS DISCUSSION Elk Grove case9th Cdidnt raise standing issue. Said unconstitutional condemned. Talk

about passing constitutional amendmenttaking away funding from judges who voted formajority in casepeople didnt like it and attacked judicial independence. SC saw people gvery heated so didnt want to address it.

Bush v. Gore had just happened so people were already questioning SC, court responded witfear about pledge of allegiance case.

o (2) Prohibition Against Generalized Grievances Prevents individuals from using if only injury is as citizen or taxpayer wanting government to

follow law This is prudential principle preventing standing when asserted harm is generalized grievance

shared in substantially equal measure by all or large class of citizens United States v. Richardson (pg. 77) PRECENDENT

Frothingham v. Mellono P sought to enjoin enforcement of Federal maternity Act of 1921 (provided financial

grants to States with programs for reducing maternal & infant mortality)o P said violation of 5th A Due Process saying legislation encroached on area reserved t

Stateso Injury was that congressional enactment challenged as unconstitutional would, if

applied, increase complainants future federal income taxes


19/93

o NO STANDING b/c not the kind of direct injury required for standing sincecomparatively minute, remote, fluctuating & uncertain impact on taxpayer

Flast v. Coheno Whether party seeking relief alleged such personal stake in outcome of controversy to

assure concrete adverseness on which court so largely depends for illumination ofdifficult constitutional questions.

o Two Pronged Standing Test (a) Challenging enactment under Taxing & Spending Clause of Article I8 of

Constitution

(b) Claiming that challenged enactment exceeds specific constitutional limitationimposed on taxing & spending power

o Court made clear it was reaffirming principle ofFrothinghamprecluding taxpayers uof federal court as forum where can air generalized grievances about conduct ofgovernment or allocation of power in Federal System

ISSUE HERE Whether Richardson has standing to bring action as federal taxpayer alleging certain

provisions concerning public reporting of expenditures under CIA Act of 1949 violateConstitution

Whether Richardsons claims meet standard for taxpayer standing set forth inFlast HOLDING

Doesnt passFlasttest so no standing REASONING

Flast Test Appliedo Challenge isnt addressed to taxing or spending power but to statutes regulating CIAo No claim that appropriate fund being spent in violation of specific constitutional

limitation upon taxing & spending power

Rather, Richardson asks courts to compel Government to give him information on precishow CIA spends its fundsthere is no logical nexus here

RICHARDSON ARGUES Without detailed information on CIA expenditureand activitieshe cant intelligently

follow action of Congress or Executive, & cant properly fulfill obligations as member o

electorate in voting for candidates seeking national officeo COURT: This is generalized grievance since impact on him is plainly undifferentiate

& common to all members of public

While he has genuine interest in use of funds & interest prompted by status as taxpayer,hasnt alleged that as taxpayer, he is in danger of suffering any particular injury

Ex parte LevittLevitt challenged validity of commission of Supreme Court Justicenominated & confirmed while still member of Senate.o Levitt alleged appointee voted for increase in pay provided by congress for Supreme

Court Justices; claimed appointment violated explicit prohibition of article inconstitution

o NO STANDING b/c must show direct injury, not general interest common to allo If allegations were true, there was violation of Constitution but still held insufficient t

support standing b/c whatever Levitts injury, it was one shared with all members ofpublic

POSSIBLE COUNTER ARGUMENT Can say that if respondent isnt permitted to litigate this issue, no one ca This is valid argument, but simply gives support to idea that subject matter is committed

surveillance of Congress & ultimately political process

Constitution created representative government so in two, four, & six years, citizensdissatisfied with representatives decisions can vote them out of officeslow process butstill works

DISSENT


20/93

Frothingham &Flastare different from case here where Richardson isnt asking court toinvalidate federal statutesimply asking to get right to receive information

Court is wrong in saying no standing b/c respondent is traditional Hohfeldian plaintiffo When party seeking judicial determination that D owes affirmative duty, it seems cle

that he has standing to litigate issue of existence vel non of this duty once he shows thD declined to honor his claimwould ask D to pay money if P hadnt been paid; samprincipal

Policy Of Leaving Issues To Political Process Schlesigner v. Reservists Committee to Stop the War(Pg. 80) Court denied citizen & taxpayer standing here too P sued to enjoin members of Congress from serving in military reserve Constitution prevents senator or representative from holding civil office Standing denied b/c P alleged injury only as citizen/taxpayer with interest in having

government follow the law. Didnt show violation of specific constitutional right.

Court said system of government leaves many crucial decision to political processassumption that if respondents have no standing to sue, no one would is not reason to finstanding

Court understood no one would be able to bring lawsuit so crucial issue is: Whether desirablthat some constitutional provision be left entirely to political branches for interpretation &enforcement

However, Majority argues absence of judicial review confirms matters best left to politicalprocess

But Critics say essential that judiciary be available to enforce all of Constitution or it can beeffectively rendered nullitysimilar issue with Political Question Doctrine

o Exception For When Tax Payer Standing Permitted To challenge government expenditures as violating Establishment Clause of 1st Aprovision th

prohibits Congress from making any law respecting establishment of religion Flast v. Cohen (pg. 81) Frothingham v. Mellon held federal taxpayer without standing to challenge constitutionality

federal statuteholding stood for 45 years ISSUE

WhetherFrothingham barrier should be lowered when taxpayer attacks federal statute ongrounds that it violates Establishment & Free Exercise Clause of 1st A

FACTS Appellants filed suit to enjoin allegedly unconstitutional expenditure of federal funds und

Title I & II of Elementary & Secondary Education Act of 1965

Alleged taxpayer status complaining federal funds appropriated under Act were being usto finance instruction in religious schools, to purchase textbooks, etc.

Such expenditures were allegedly contradictory to 1st A STANDING ISSUE

Whether dispute sought to be adjudicated will be presented in adversary context & in aform historically viewed as capable of judicial resolution

Whether party invoking federal court Jx has personal stake in outcome of controversy &whether dispute touches upon legal relation of parties having adverse legal interests

RULE Whether party seeking relief alleged personal stake in outcome of controversy to assure

concrete adverseness on which court so largely depends for illumination of hardconstitutional question

How to determine when federal taxpayer deemed to have person stake & interest? Flast Two Pronged Standing Test

o (1) Challenging enactment under Taxing & Spending Clause of Article I8 ofConstitution


21/93

Not sufficient to allege incidental expenditure of tax funds in administration ofessentially regulatory statute

Establish logical link between taxpayer status & type of legislative enactmentattacked

Taxpayer can only challenge expenditure of funders under taxing & spending clauo (2) Taxpayer must establish nexus between that status & precise nature of constitutio

infringement alleged Taxpayer must argue Congress is violating particular constitutional provision wit

expenditure & not just Congress is exceeding scope of powers under Constitution

Court made clear it was reaffirming principle ofFrothinghamprecluding taxpayers use federal court as forum where can air generalized grievances about conduct of governmeor allocation of power in Federal System

HOLDING & ANALYSIS There is standing b/c (1) & (2) met (1) Constitutional challenge made to an exercise by Congress of its power under Article I

8 to spend for general welfare & (2) challenged program involves substantial expenditurefederal tax fundsadditionally allege challenged expenditure violates EstablishmentClause of 1st A

Framers feared taxing & spending power might be used to favor one religion over anotheor support religion in generalso made Establishment Clause of 1st A designed as specif

bulwark against such potential abuse of govt. power. Clause operates as specificconstitutional limit on exercise by Congress of taxing & spending power conferred byArticle I 8

DISSENT Requirements of standing here dont resolve standing problem only restates it Many problems but major one is: Test is not measurement of Ps interest in outcome of s (1) Ps interest is not made greater or smaller by unconnected fact that expenditure is, or

not incidental to an essentially regulatory program.o Example: If congress passes two programs, one encouraging specific religious group

and another discouraging all other religious groupshow do we decide if taxpayer hstanding?

Should we say personal stake in one suit matters less than in other? (2) Intensity of Ps interest in suit not measured by fact that constitutional provision of

claim is or is not specific limitation on Congress spending powero If taxpayer believes given public expenditure is unconstitutional, & seeks to vindicate

that belief in court, it doesnt make sense how his interest in suit necessarily variesaccording to constitutional provisions under which he states claim

Must recall that other branches of Government are ultimate guardians of liberties & welfof people in quite as great a degree as courtspower of federal judiciary will be adequatfor great burdens placed on them only if employed prudentially with recognition ofstrengths as well as hazards that go with representative government.

Valley Forge Christian College v. American United for Separation of Church & State, Inc. (P83) Flast never overruled but also not extended In Valley, court held taxpayers lacked standing to challenge federal governments decision to

grant property or its power to dispose of property under Article IV, 3 Held taxpayers have standing only to challenge expenditures violating Establishment Clause

Hein v. Freedom From Religion Foundation (Pg. 84) Further limited Flast & held taxpayers lacked standing to challenge expenditure from genera

executive revenue as violating Establishment Clause FACTS

President created Faith-Based & Community Initiative programs violating EstablishmentClause


22/93

D claim meeting standing b/c meet Flast Test RULES

Federal courts not empowered to seek out & strike down any governmental act deemed tbe repugnant to ConstitutionRather, federal courts sit solely, to decide on rights ofindividuals & must refrain from passing on constitutionality of act unless obliged by propperformance of judicial function when question raised by party whose interests entitle himto raise it.

ARGUMENTS Individual respondents are federal taxpayers opposed to use of Congressional taxpayer

appropriations to advance & promote religionchallenge Executive Branch Argue Flast Test should extend to Executive Brach spending

o COURT: No because Flast limited taxpayer standing to challenged directly only atexercises of congressional power under Taxing & Spending Clause. Link betweencongressional action & constitutional violation is missing hereactions are byExecutive Branch only

REASONING Valley Forge Held taxpayer lacked standing to challenge federal department of Health,

Education, & Welfare decision to transfer federal property to religious college b/c transfewasnt congressional action

More congressional action connection in Valley than hereo Executive action challenged was at least authorized by Federal Property &

Administration Service Actpermitted federal agents to transfer surplus property toprivate citizens

(1) Here, no connection to congressional action at all so extending Flast exception to purexecutive expenditures would effective subject every federal action to Establishment Clachallenged by any taxpayer in federal courtbroad reading would ignore first prong ofFlasts standing test requiring logical link between taxpayer status & type of legislativeenactment

(2) Serious separation of powers concernFlast failed to recognize this doctrine hasseparation of powers component which keeps courts within certain traditional bounds likother brancheso Respondents position would repeat & compound this mistake

(3) Court of Appeals tried to extend Flast, necessary connection of stare decisis thatprecedent is not always expanded to limit of its logictake same approach as in Valley

HOLDING No Standing & dont extend Flast but also dont overrule it leave it as is

CONCURRING - Scalia Concur in no standing but Flast was wrong and should be overruled Court inconsistently described first element of Irreducible constitutional minimum of

standingo Minimum consists of (1) concrete & particularized injury in fact (2) fairly traceable to

Ds alleged unlawful conduct & (3) likely to be redressed by favorable decisiono Alternatively rely on two entirely distinct conceptions of injury in fact Wallet Injuryconcrete & particularized injury expect taxpayer to assert Physic Injuryconsist of taxpayers mental displeasure that money is spent

unlawfully

Flast invoked restricted version of Physic injury by permitting taxpayer displeasure overunconstitutional spending if provision allegedly violated is specific limit on tax & spendpower

Flaw is twofold:o (1) never explained why Physic Injury was insufficient in cases where standing denieo (2) never explained why Physic Injury, however limited, is cognizable und

First, must decide whether Psychic Injury consistent with Article III


23/93

o If yes, then apply Flast to all challengeso If no, then overturn Flast

Court argues stare decisis president is not always expanded to limit of its logico True but (1) precedents logic seen to require narrowing or readjustment in light of

relevant distinctions that new fact situation brings fore; oro (2) logic is fundamentally flawed, and deserved to limited to facts that begot ito Here, (1) court gives explanation of why factual differences are material & (2) basica

admits express congressional allocation vel non has nothing to do with whether P havalleged injury in fact that is fairly traceable & likely to be redressed.

DISSENT - Souter There is standing b/c Flast factors are met No basis for denying taxpayers because Executive Branch & not Legislative Branch, cau

injury

Taxpayers dont seek to extend Flast, but simply apply ito No dispute taxpayer money in identifiable amounts funding conferences promoting

religion

Separation of powers argument by majority doesnt work because no difference betweenJudicial Branch review of executive decision or judicial evaluation of congressional oneo When Govt. spends money for religious reasons, taxpayers injury is serious & concre

enough to be judicially cognizable

(3) Ripenesso RULE: P must show review is not premature (harm has occurred or imminently will occur)o Case cant be heard at this time(doesnt mean it cant be heard ever)o Want to deal with cases that have well developed factsvery hard to engage in fact finding when

dont have something occurring. But, there are times when sometimes courts review prematurestatutes/regulations.

o Similar to standing but more specific: When may party seek pre-enforcement review of statute orregulation?

o Unfairness: requiring person to violate law to challenge legality of statute or regulation whenprosecuted.

Forces people to obey unconstitutional law or risk punishmento Poe v. Ullman (Pg. 92) CAUSE OF ACTION: Connecticut statute prohibited use of contraceptive devices and giving medical advice on usi

these devices P seek declaratory relief & say challenge constitutionality of the statute. FACTS: No. 60 (combines two actions)

(1) Poehusband/wife had 3 consecutive still birth pregnancies Doctor Buxton & Poes know contraceptives are best option but cant get opinion b/c of

statute

(2) DoeVarious physical illnesses due to first pregnancies (paralysis, unconsciousness,etc)

No. 61 (Dr. Buxtons action) Declaratory relief: Says statute deprives him of liberty and property w/o due process of la

RULE: Penal Statute is not ripe for review unless it is enforced by state ISSUE: Is petitioners claim ripe for review? HOLDING & REASONING: No b/c mere existence of state penal statute is insufficient grounds for review Court basically says they dont deal with these kinds of cases. WHY? Connecticut has not enforced this statute (especially since contraceptives are commonly and

notoriously sold in states drug stores) so this deprives controversies of the ripeness andimmediacy which is indispensable condition of constitutional adjunction.


24/93

DISSENT: Douglas There has been some enforcement Giving them choice of either having sex-less marriage, or more miscarriages. Our highest court shouldnt be promoting people to break the law highest court shouldnt b

giving this advice. Also threat of bringing law suit is injury in itself. By denying declaratory relief, basically asking couples to commit a crime by using

contraceptives. Not choice they need under regime of declaratory judgment & our constitutional or civilized

society

NOTES: Five years later, Buxton (see below yellow comment) with Planned Parenthood openly viola

statute and was prosecuted Won declaratory reliefbut underlying question is:

Whether waiting for actual prosecution was appropriate restraint or if it was undesirableavoidance of important constitutional issue.

CLASS DISCUSSION: Why these plaintiffs?

Most sympathetic for case. Hence mention married, legitimate issues with pregnancy What about enforcement? (per dissent, there has been some)

Gay sodomy case from Texas, there was arrestwe know police were called, door waswide open, saw sodomy, & then arrested. To avoid Poe resultbe careful & actually setreal arrest.

Buxton: Substantive process right in privacy and gave us Roe v. Wade.o Abbott Laboratories v. Gardner(Pg. 95) CAUSE OF ACTION Congress amend Federal Food, Drug, & Cosmetic Act requiring prescription drug

manufacturers to print established name (generic name) along with proprietary name(brand name)

P sought injunctive & declaratory relief saying Commissioner of Food & Drugs exceededauthority under statute by requiring manufacturers to put established name anytime trade namused

RULE: Ripeness Rationale:

Prevent courts, through avoidance of premature adjudication, from entangling themselvesabstract disagreements over administrative policies.

Protect agencies from judicial interference until administrative decision has beenformulated and effects felt in concrete way by challenging parties

Ripeness Test (1) Fitness of issue for judicial decision (2) Hardship to parties of withholding court consideration

HOLDING (1) Fitness: Meets b/c issue tendered is purely legal one: Whether statute was properly

construed by Commissioner to require specific labels. (2) Hardship: Meets b/c impact of regulations is direct & immediateeffects day-to-day

business. CLASS DISCUSSION Difference between Poe & Abbott

dying vs. labelsSad for Poe b/c those clients Had to distinguish abbot from Poe so court set up criteria in comment below: Ripeness t Was Poe factual question? Not really, b/c if you apply this test, Poe was decided

incorrectly. Hardship is severe, and fitnessright of body is question of law. BUTremember, Poe was decided before Abbot.

Why do they say there is harm? What is legal injury?


25/93

Financial injury, they would have to re-do labels of already printed materialexpensive tchange ads and labels. Would have to incur substantial costs and if it exceedscommissioners authority then they dont have to do it.

LEGAL OR FACTUAL ARE JUST CONSIDERATIONS THEY TAKE IN FINDINGRIPENESS

Abbottsays is the issue one that we can do a focus review on (factual or legal) What is difference? Ex: does fed drug administration had right to give description on labe

This is legal question about if they have power.

Ex: What was state of mind? Factual question How do you decide fitness element in Ripeness Test?

How do you decide something is fit? Similar to redressability? What is not fit? A factuaissue. Difference between factual and legal cases. Legal is more FIT for reinforcementreview. Why? B/c facts arent developed yet. Pre-enforcement review means there are nfacts yet.

o United Public Workers v. Mitchell(Pg. 96) Hatch Act of 1940prevented federal employees from participating in political

management/campaign P want declaratory relief that law violated 1st A & gave details about what they wanted to

participate in NOT RIPEb/c Ps clearly seek advisory opinions upon broad claims. Hypothetical threat not

enough. Different from Abbot? They sought relief before the act went into effect so why? Court would

have to find facts so not ripe.o International Longshoremens & Warehousemens Union (Pg. 96) Aliens wanting to work in Alaska before it became a state sued so could return to US afterwards

sued to enjoin immigration officers from preventing return. Argued: without declaratory judgment, would be forced to choose between job and country NOT RIPE b/c situation was hypothetical, too remote and abstract

o Regional Rail Reorganization Act Cases (Pg. 97) Railroads challenged conveyance of their property to Conrail DC: Not Ripe b/c reorganization plans not formulated & special court hadnt ordered

reconveyances SC: YES RIPEb/c time delay doesnt matter when inevitability of operation of a statute is

obvious.o Lake Carriers Assn. v. MacMullan (Pg. 97) State law prohibited discharge of sewage from boats but wouldnt enforce law until land-based

pump-out facilities would be available P challenged statutes validity. How? YES RIPE b/c even though enforcement many years away, still inevitable that law would be

enforced & as result boat owners had to begin installing new facilities on boat.

(4) Mootnesso MOOTNESS RULE: Cases must be live controversies at all stages of federal court litigation. Ex: Case is moot if criminal D dies during appeals process Ex: Civil P dies where cause of action doesnt survive death Ex: If parties settle matter (if court continued it would be advisory opinion) Ex: If challenged law is repealed or expires

o Justification for Mootness: court cant give advisory opinion, court has limited time, etc?o Mootness can kill a case even when many things have been input into establishing the case.o MOOTNESS EXCEPTION: (1) Is issue capable of repetition? Cases capable of repetition would evade judicial review if not considered Moore v. Ogilvie (Pg. 98) FACTS:


26/93

Illinois law: To nominate candidate for general election for new political party, petitionrequired at least 25K signatures by qualified voters, including 200 from each of at least 5counties.

Plaintiffs (1968) filed petition for inclusion on ballot, but denied b/c didnt meetrequirements

ISSUE & HOLDING Whether case became moot when election ended in November 1968 NOT MOOT, b/c burden for future candidates still existed. Problem is capable of

repetition

Roe v. Wade(Pg. 99) FACTS:

Texas law prohibited abortion Roe pregnant & wanted declaratory judgment that law unconstitutional & injunction agai

D from enforcing the law. ISSUE & HOLDING:

Whether case became moot when Roe was no longer pregnant. NOT MOOT, b/c capable of repetition Mootness rule should not be rigidly applied since pregnancy litigation would seldom

survive DeFunis v. Odegaard(Pg. 99) FACTS:

White male challenged denial to U of Washington Law School saying schools affirmativaction program denied him equal protection.

Received preliminary injunction and attended school. Allowed to graduate. HOLDING:

MOOTb/c SC of Washington ruled on it so other cases wont come to US SC in timelymanner

o MOOTNESS EXCEPTION: (2) Voluntary Cessation Friends of the Earth, Inc. v. Laidlaw Environmental Services (Pg. 100) FACTS

Environmental groups sued holder of National Pollutant Discharge Elimination System(NPDES) permit, saying it was violating mercury discharge limits

Wanted Declaratory and injunctive relief, civil penalties, costs, and attorney fees. D voluntarily started complying with standards and shut down facility Say issue is now moot b/c closed facility so no injunctive relief.

HOLDING: NOT MOOT D has burden of persuading court that conduct cannot reasonably be expected to start up

again

P has burden when suit of forced compliance by showing that if unchecked litigation, Dallegedly wrongful behavior will likely occur or continue, & that threatened injury isimpending

CLASS DISCUSSION: How can you end this case then if voluntary cessation isnt enough?

o Agree to settlement and put in consent decree (injunction) that if violate, you will go jail or be fined heavily etc. BUT, have to really sure that your client genuinely wontdo it again.

o MOOTNESS EXCEPTION: (3) Class Action Suits United States Parole Commn. v. Geraghty (Pg. 101) FACTS:

Federal Prisoner denied parole twice so brought individual and class action suit challengivalidity of US Parole Commissions Parole Release Guidelines.


27/93

District Court denied certifying suit as class action; Prisoner appealed but release duringprocess

ISSUE: Whether trial courts denial of motion for certification of a class can be reviewed on appe

after the prisoners personal claim became moot. HOLDING: NOT MOOT

Yes, can be reviewed b/c controversy is still live between petitioner and some memberclass respondent wants to represent.

Sosna v. Iowa:o NOT MOOT b/c controversy may exist between D and members of class represent b

Po Vigorous advocacy can be assured through other means than personal state in

outcome

(5) Political Question Doctrineo Leaves some constitutional violations to political branches of governmento Question is: whether there should be political question doctrine? Policy for: (1) Ability to avoid controversial constitutional questions & limit courts role in democratic

society

Professor Bickel & Justice Frankfurter believed judiciary had fragile political legitimacy (2) Allocates decisions to branches of government with superior expertise in particular areas (3) Federal courts self-interest disqualified them from ruling on certain matters

Courts shouldnt be involved in reviewing process for ratifying constitutional amendmenbecause amendments are only way to overturn SCs constitutional interpretation

(4) Separation of powers grounds as minimizing judicial intrusion into operations of otherbranches

Policy against: (1) Judicial role is to enforce Constitution so inappropriate to leave constitutional questions t

political branches of government (2) Disagree with Bickel & Frankfurter that judiciarys political legitimacy is fragile in fac

believe it to be robustjudiciary that ducks controversial issues to preserve its credibility islikely to avoid judicial review where it is needed most, to restrain highly popular,unconstitutional govt. action

(3) Confuses deference with abdication - doctrines defenders demonstrate only that on meritCourt should hesitate in some areas before ruling against other branches of government; itswrong to deem those areas to be nonjusticiable.

o Constitutional or Prudential? Constitutional if based on separation of powers or textual commitments to other branches of

govt. Prudential ifreflects Courts concerns about preserving judicial credibility & limiting role of

unelected judiciary in democratic societyo Malapportionmentunequal representation, broad & systematic variance in size of electoral

constituencieso Gerrymanderingallocating political power among set of principles (or defined constituencies) Difference: malapportionmentnumbers of eligible voters per elected representative can vary

widely without relation to how boundaries are drawno BACKGROUND: Court rejected earlier challenge to malapportionment based on Guaranty Clause Guaranty Clause: US shall guarantee to every State in Union as Republican Form of

Government and shall protect each of them against Invasion; and on Application ofLegislature, or of Executive (when Legislature cant be convened) against domestic Violence

Colegrove v. Green(Reapportionment)


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Held challenges to malapportionment under provision are non-justiciable PQs Court long has refused to find cases under Guaranty Clause justiciable

Luther v. Borden(Republican form of government clauseGuaranty Clause) Voters of Rhode Island adopted new state constitution; existing govt. enacted law prohibiting

constitution from going into effect & declared voting in elections a crime. elections held, Borden broke into election commissioner Luthers house to lookfor evidence of illegal

participation in prohibited election. Sued for trespassclaimed lawful exercise of government power HOLDING: Case posed political question; Congress must decide what government is

established in state before it can determine if it is Republican or not. Political question b/c if state govt. declared unconstitutional, then all actions would be

invalidated, creating chaos in Rhode Island

Lack of criteria for deciding what constitutes a republican form of governmento Baker v. Carr(Pg. 104)(Malapportionment) FACTS: Apportionment issue brought forth on 14th A Equal Protection claim rather than Guaranty

Clause ISSUE: Whether possible to bring malapportionment claim without raising nonjusticable political iss

HOLDING: Yes, here case brought under Equal Protection & malapportionment violated it.

RULES: What questions are political in nature?

1. Textually demonstrable constitutional commitment of issue to coordinate politicaldepartmento Ex: Brennan cited issues of foreign affairs and executive war powers, arguing that ca

involving such matters would be "political questions"o Is there portion of C that dedicates this issue to political department (congress or

presidency)? If it is, then it is political question

2. Lack of judicially discoverable & manageable standards for resolving it;o Lack of good standards then dont decide

3. Impossibility of deciding w/o initial policy determination of kind clearly for nonjudicidiscreti

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