Judicial Review
Syllabus
The Constitution
Judicial Review
Legislative Power
Executive Authority
Federalism
Separation of Powers
Commerce Power
Economic Due Process
Martin v. Hunter’s Lessee
1 Wheat. 304 (1816)
Facts: During Revolutionary War, Lord Fairfax, a British subject,
inherited a large amount of land in Virginia. Fairfax died in
Virginia. Denny Martin, another British subject and his nephew,
inherited land. Virginia law in 1781 specified that no “enemy” could
inherit land. Virginia confiscated and began to sell off parcels.
Martin, thinking he had good title to the land, also began to sell off
parcels of land. This triggered suits over who had good title to the
various parcels of land. (John Marshall had purchased land from
Martin v. Hunter’s Lessee
Martin and consequently did not participate in this case on the
record.) In Fairfax Devisee v. Hunter’s Lessee (1813), the Court
struck down the Virginia statute on grounds it was inconsistent with
the Treaty of Paris (1803), which promised to recommend to states to
restore confiscated land. Highest court in Virginia refused to give
force to the Court’s decision; said Supreme Court does not have
appellate jurisdiction over state courts on federal issues. Struck
down Section 25.
Martin v. Hunter’s Lessee
This is precisely the sort of lawsuit the advocates of states rights,
who opposed the creation of lower federal courts at Philadelphia,
wanted state wanted state courts to decide.
The battle over Martin is thus a continuation of the argument.
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Martin v. Hunter’s Lessee
Legal questions: The central one is: Does the Supreme Court have
jurisdiction over this case? Does the Supreme Court have appellate
jurisdiction over the decisions of state supreme courts on the
meaning of the federal Constitution, federal laws, and federal
treaties.
Outcome/Vote: 6 (Duvall, Johnson, Livingston, Story, Todd,
Washington) to 0. Marshall not participating. Justice Joseph Story
wrote the opinion.
Martin v. Hunter’s Lessee
Triggering statute: In the initial suit, conflict between Treaty of
Paris and Virginia statute of 1781, confiscating properties. In this
go-around, Section 25 of the Judiciary Act of 1789 is in question.
Provision of the Constitution at issue: Article III, the Judicial Article;
Article VI, on the supremacy of the Constitution and the obligation of
judges to enforce it.
Martin v. Hunter’s Lessee
Legal reasoning: The Constitution derives from the people, not as
delegations from sovereign states. To achieve the purposes of the
general government, it prohibits the states from doing certain things.
Tenth 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. Power exercised by national
government must be delegated to it or fairly implied by the
delegation. Provisions of Constitution are by necessity expressed in
general terms, not in
Martin v. Hunter’s Lessee
specifics, since Framers could not envision all eventualities.
Judicial power extends to all cases. The case, not the court, gives the
Supreme Court jurisdiction. If Framers meant appellate jurisdiction
to extend only to cases decided in the lower federal courts, all of the
cases enumerated would be decided in lower federal courts, not state
courts. Otherwise, jurisdiction would not extend to all cases arising
under the Constitution, laws, treaties, etc., or to all cases
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Martin v. Hunter’s Lessee
of admiralty and maritime. If state courts could decide some of
these, but Court did not have appellate jurisdiction of them,
judicial power would not extend to all cases. Similarly, if the
Virginia courts’ view held, if Congress had not created lower
federal courts, then the Supreme Court would not be able to decide
cases on appeal or arising under the Constitution.
Constitution meant to extend jurisdiction to cases in state courts.
State courts would in exercise of their duties have to interpret
federal Constitution, laws, and treaties.
Martin v. Hunter’s Lessee
States not sovereign; Constitution operates on the states, limiting
their powers. E.g, Article I, Section 10 lists disabilities of the states.
Court can without question revise the actions of state legislatures
and executives; and it follows that it may do so with state judiciaries
as well.
State judges independent but not independent on matters delegated
to the United States.
Martin v. Hunter’s Lessee
That state judges also take oath to defend federal Constitution is
irrelevant. State jealousies, prejudices might interfere with the
administration of justice. Without appellate jurisdiction to the state
courts, interpretation of the Constitution might not be uniform.
Holding/legal doctrine: the Court reversed Virginia’s highest court.
Affirmed judgment for Martin in trial court. Section 25 of the
Judiciary Act of 1789 is consistent with Article III and
Martin v. Hunter’s Lessee
Act of 1789 is consistent with Article III and Article VI, Section 2, of
the Constitution. The Court has the power to review on appeal
decisions of state courts on the meaning of the federal Constitution.
Martin v. Hunter’s Lessee
Other views: Story’s opinion was unanimous.
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Commentary on Martin v. Hunter's Lessee
For the Court, Justice Story concludes that § 25 of the Judiciary Act
of 1789 is constitutional. Thus, the Supreme Court has the
constitutionally permissible statutory authority to hear appeals of
federal constitutional issues from the highest court of a state. Story
begins with the assertion that Art. III, § 2 of the Constitution
provides the Court with jurisdiction over all cases, whatever their
origin. Then, the text of the Constitution (the Supremacy Clause of
Art. VI), together with a historical argument concerning the intent of
the framers of the Constitution, indicates that the Court would have
the power to review state court
judgments on federal constitutional issues, for many such issues
would arise initially in state courts. Story offers analogies to the ex
post facto and impairment of the obligation of contracts provisions of
Art. I, § 10, which involve issues of constitutional law that must
initially be decided in a state court. Story also offers four policy
reasons for justifying a review power by the Supreme Court: 1) the
law will be more uniform (an argument he would use 25 years later
in Swift v. Tyson) if the Court has review authority; 2) final authority
must be placed somewhere, and the federal Supreme Court is the
best place to lay that authority, and the possibility of abuse of that
power is irrelevant to its use or existence; 3) making the Court the
final authority on federal constitutional issues will less forum
shopping (also used in Swift); and 4) the American people (or at least
the important ones), through their adoption of the Constitution,
concluded that Supreme Court review of state court decisions on
federal constitutional issues will alleviate if not eliminate state
jealousies.
Martin is also interesting because of different way Story uses
framers of the Judiciary Act of 1789 than Marshall in Marbury v.
Madison. In Martin, Story notes that "It is an historical fact, that at
the time when the judiciary act was submitted to the deliberations of
the first
congress, composed, as it was, not only of men of great learning and
ability, but of men who had acted a principal part in framing,
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supporting, or opposing that constitution, the same exposition was
explicitly declared and admitted by the friends and by the opponents
of that system." Thus, Story defers to First Congress as "just like" the
framers. In Marbury, Marshall shows no such deference, and indeed
implicitly declares members of the First Congress a bit slow, for
enacted an unconstitutional provision, § 13 of 1789 Judiciary Act.
Recall also in Marbury Marshall justified use of
judicial review on the ground that Court swore an oath to uphold
Constitution. The Virginia Court of Appeals "flips" this argument by
asserting that because they also swore an oath to uphold
Constitution, no need for further review of its judgment by Supreme
Court. Story avoids responding directly to this claim by stating that
Constitution "has proceeded upon a theory of its own." Marshall
recused himself in Martin because of his financial interest in the
litigation.
Should he have done so in Marbury? (If he had, there was not a
quorum to hear and decide Marbury until Justice Alfred Moore
arrived on the 18th of February.) Finally, Story's dismissal of "abuse
of power" argument in Martin should be compared with Marshall's
use of Maryland's claim that it would not "abuse its power" in
McCulloch v. Maryland.
Chief Justice John B. Gibson
Eakin v. Raub,
12 Sargent & Rawle 330 (PA. 1825)
Facts: case in ejectment.
Chief Justice Gibson, in dissent: arguments against justifications for
judicial review set out in Marbury v. Madison. “Departmentalism,”
departmental conception of the role of judicial review. Jefferson’s
view, view of state’s rights advocates and proponents of strict
separations of powers, usually the same people.
Ex parte McCardle
Wall. 506 (1869)
Facts: William McCardle was editor in State of Mississippi, which
under Reconstruction Acts was under military district. He opposed
various measures passed by Reconstruction Congress. Urged
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resistance against them. Was arrested by military authorities
(General Ord) for publishing “incendiary and “libelous articles,” held
for trial in military tribunal, and found guilty in tribunal. McCardle
sought writ of habeas corpus under 1867 law giving federal judges
power to grant habeas corpus to any person restrained in violation of
Constitution.
Ex parte McCardle
Circuit Court denied his petition. McCardle filed an appeal in
Supreme Court. Court heard oral argument. Congress then passed
repealer. Court heard re-arguments in response to repealer.
Triggering statute: 1867 Habeas Corpus Act (authorized writ of
habeas corpus to persons held anywhere in violation of Constitution).
Repealer of 1867 Act in 1868. Judiciary Act of 1789 (section
permitting Court to issue writs of habeas corpus in original
jurisdiction. It referred to persons held under the authority of
United States in violation of Constitution).
Ex parte McCardle
Legal reasoning: Court need not examine whether, absent statutory
authorization, Court might under its own rules exercise general
appellate jurisdiction under Article III; since 1789, with Judiciary
Act, Congress has spelled out Court’s appellate jurisdiction. Under
1868 statute explicitly repeals appellate jurisdiction to Circuit Courts
of writs of habeas corpus under 1867 Habeas Corpus Act—writs of
habeas corpus for persons held by either state or federal authorities
allegedly in violation of Constitution. Cannot inquire into motives of
Congress; power to make exceptions is given in
Ex parte McCardle
express terms by Constitution. Court cannot proceed to decide case if
it has no appellate jurisdiction; Congress has taken away in 1868
what it gave in 1867. Thus Court is without jurisdiction. This does
not remove ability of Court to decide writs of habeas corpus, either to
state or federal officials, in its original jurisdiction; and does not take
away appellate jurisdiction of appeals on writs of habeas corpus
under 1789 Act to federal officials. Nor does it suspend or abolish the
writ of habeas corpus.
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Ex parte McCardle
Holding/legal doctrine: Under the Exceptions Clause, Congress can
take away appellate jurisdiction.
Other views: Chase’s opinion was unanimous.
Political circumstances/implications:
Reconstruction Acts, including protection of blacks, raised serious
constitutional questions. Depended on military authority to
enforce. Constitutional threats to military authority thus
threatened the success of Reconstruction
Ex parte McCardle
Lincoln often used military authorities, and military tribunals,
during Civil War to control dissidents and political opponents.
Indiana, and several other border states, did harbor large segments
of disloyal citizens. Copperheads. Later focal point of KKK.
Congress had already reduced size of the Court from 10, during
Lincoln’s time, to 8, in order to deny Johnson appointments. Implied
threat against the Court was clear.
United States v. Klein
13 Wall. 128 (1872)
Facts: Klein was pardoned by president for aiding in the civil war
rebellion. A statute existed that would allow persons who did not aid
in rebellion to recover land seized from them in Reconstruction.
Previous case law had held that presidential pardon was conclusive
proof that a person had not committed crime.
Procedural Posture: A new statute was enacted by Congress while
Klein case was pending appeal, reversing previous tradition of a
pardon being proof of non-participation, and in
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United States v. Klein
in fact making it conclusive proof of actual participation. In addition,
statute purported to remove federal court jurisdiction for all such
claims arising from pardons.
Issue: Whether Congress has constitutional power to enact a statute
which limits jurisdiction of federal courts, particularly Supreme
Court, when, by limiting this jurisdiction would dictate outcome of a
particular case.
Holding: No.
United States v. Klein
Argument: Congress has power under Article III to limit appellate
jurisdiction of federal courts because of specific language “with such
exceptions...as Congress shall make.”
Argument: Congress does not have power to dictate outcome of any
particular case because such would be contrary to separation of
powers structure of Constitution.
Majority Reasoning: Statute removing jurisdiction in this instance
was unconstitutional because it was only “a means to an end,” to
affect
United States v. Klein
the outcome of this particular case. Dismissing appeal would allow
Congress to prescribe judgments of the Supreme Court directly. The
statute prescribed how Court should decide an issue of fact, and it
denied effect to a Presidential Pardon, thus violating separation of
powers.
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United States v. Klein
Limits on Congressional Power Under the Exceptions Clause
Congress does not have unlimited power to take away the Court’s
appellate jurisdiction.
United States v. Klein, 80 U.S. 128 (1872). Same era as McCardle.
Klein sued in Court of Claims under federal law allowing citizens
who had abandoned property to federal troops during the Civil War
to recover compensation for it, if they could meet loyalty
requirements. Klein won in Court of Claims, on strength of earlier
cases
United States v. Klein
holding that a general presidential pardon satisfied statutory
requirement that claimant not have been a supporter of Confederacy.
Government appealed its loss, but before Court decided it, Congress
passed a new law providing that presidential pardon would show just
the opposite--that claimant had supported the Confederacy. Statute
provided that the Court of Claims and Supreme Court were both
without jurisdiction to decide cases where a pardon had been
granted.
United States v. Klein
Court struck statute down in Klein as unconstitutional. It violated
the separation of powers and invaded the judicial function. Court
said this was not a valid and bona fide denial of appellate jurisdiction
in a whole class of cases but rather merely a means to an end--a way
to deny to pardons granted by the President the effect which the
Court had decided they have.
Thus, Klein implies: any jurisdictional limitation must be neutral;
Congress may not decide merits of a case under guise of limiting
jurisdiction.
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United States v. Klein
Congress may not use “exceptions” to destroy the Court’s essential
role. Congress cannot say that Court has no appellate jurisdiction at
all. In fact, Article III’s references to regulate and exceptions implies
a grant of appellate jurisdiction.
Congress may not limit the Court’s appellate jurisdiction in way
which would place on litigant an unconstitutional limitation. Rights
to due process, equal protection, free speech, etc., must be honored in
statute taking away jurisdiction. Congress could not, for example,
abolish appeals of writs of habeas corpus invoking black persons.
Hamdan v. Rumsfeld
548 U.S___ (2006)
Facts: Congress adopted Authorization for Use of Military Force
(AUMF), which authorized President to use all necessary and proper
force against nations, organizations, persons he determines planned,
authorized, committed, or aided attacks. Salim Ahmed Hamdan, Bin
Laden’s driver and body guard, picked up in Afghanistan during
hostilities there and detailed at Guantanomo Bay, Cuba; admitted
those roles, denied any role in terrorist conspiracies.
Hamdan v. Rumsfeld
during continuation of conflict in Afghanistan, President issued
military order for detention, treatment and trial of certain non-
citizens in war against terrorism, i.e., “enemy combatants.” To be
tried by military commission.
Hamdan in 2004 officially charged of offense to be tried by
commission. Willfully joined common criminal enterprise.
Hamdan through lawyer sought writ of habeas corpus in USDC:
commission lacked authority because conspiracy is not offense that
violates law of war, procedures to try him violate basic tenets
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Hamdan v. Rumsfeld
of military and international law, including right to be permitted to
see and hear evidence against him.
USDC granted his petition. USCA DC reversed. Supreme Court
granted certiorari.
Question here: does Supreme Court have jurisdiction. Exceptions
Clause.
Majority (Per Stevens, with Breyer, Ginsburg, Kennedy, Souter):
Yes. Majority barely touches on Ex Parte McCardle. Instead, uses
rules of statutory construction to find jurisdiction.
Hamdan v. Rumsfeld
DTA §1005(e)(1) provides that “no court … shall have jurisdiction to
hear or consider … an application for … habeas corpus filed by … an
alien detained … at Guantanamo Bay.
Section 1005(h)(2) provides that §§1005(e)(2) and (3)—which give D.
C. Circuit “exclusive” jurisdiction to review final decisions of
combatant status review tribunals and military commissions—“shall
apply with respect to any claim whose review is … pending on” DTA’s
effective date, as was Hamdan’s case
Hamdan v. Rumsfeld
US’s argument §§1005(e)(1) and (h) repeal Court’s jurisdiction to
review decision below is rebutted by ordinary principles of statutory
construction. A negative inference may be drawn from Congress’
failure to include §1005(e)(1) within the scope of §1005(h)(2)
If Congress wanted [§§1005(e)(2) and (3)] to be applied to pending
cases, it should have been just as concerned about [§1005(e)(1)],
unless it had the different intent that the latter [section] not be
applied to general run of pending cases.
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Hamdan v. Rumsfeld
Legislative history shows Congress not only considered respective
temporal reaches of §§1005(e)(1), (2), and (3) together at every stage,
but omitted paragraph (1) only after having rejected earlier proposed
versions of statute that would have included paragraph (1) within
that directive’s scope. Congress’ rejection of language that would
have achieved result Government urges weighs heavily against the
interpretation.
“Political Questions” Doctrine
“Political questions” doctrine refers not to the unwillingness to decide
matters of political controversy but is rather a function of two sets of
considerations:
separation of powers—Court will not decide matters committed by
the Constitution to other branches of government.
prudential considerations—the Court concludes it is unwise, even
if not strictly unconstitutional, to decide such a case.
“Political Questions” Doctrine
Basic principle of “political questions” doctrine: Court makes a
determination of constitutional principles which litigants would have
Court enforce do lend themselves to interpretation as guarantees of
enforceable rights.
In Baker v. Carr, the Court announced a series of variables, at least
one of which must be present, for the Court to declare something a
non-justiciable political question:
commitment to another branch of government: text of Constitution
indicates this commitment to President or Congress
“Political Questions”
lack of standards: lack of judicially manageable and discoverable
standards for resolving the issue
unsuitable policy determination: impossibility of deciding the
matter without making a policy determination of the sort
unsuitable for the Court to make
lack of respect for other branches of government: impossibility of
Court undertaking independent resolution of dispute without
expressing lack of respect due a coordinate branch of government
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“Political Questions”
political decision already made: unusual need for unquestioning
adherence to a political decision already made
multiple pronouncements: the potential for embarrassment from
multifarious pronouncements by various branches on one issue
“Political Questions”
Commitment to other branches: text gives the power to President or
Congress, not the Supreme Court
regulating the militia: Gilligan v. Morgan, 413 U.S. 1 (1973).
Article I, Section 8, Cl. 16 grants to Congress power to organize,
etc., the militia and gives sole power to Congress to regulate the
operation of the National Guard. Court declined to permit federal
courts supervise Ohio National Guard re Kent State
“Political Questions”
impeachment: House’s power to impeach and Senate’s to convict
are not judicially reviewable because committed to Congress by
Constitution. Nixon v. United States
amendment of the Constitution: process by which amendments
become part of the Constitution commended to Congress for final
determination, not a justiciable question. Coleman v. Miller
(1939)—only Congress can decide whether a state has ratified an
amendment
“Political Questions”
congressional judgments about qualifications of members: Powell
v. McCormack (1969)—only Congress can decide on qualifications
of members, only listed in Constitution. United States Term
Limits v. Thornton
Lack of judicially manageable standards: lack of discoverable and
manageable standards for Court to resolve dispute
time for ratifying constitutional amendments: Coleman v. Miller.
Could find no criteria decide whether proposed amendment had
lost vitality
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“Political Questions”
guarantee of republican form of government: Article IV, Section
4—United States shall guarantee to every State . . . a Republican
Form of Government.” Luther v. Borden (1849). Lack of criteria
by which Court could decide which government was “republican.”
All guarantee clause cases are political questions. See Colegrove v.
Green.
war powers disputes: lack standards to decide dispute between
Congress and President on whether President has taken
congressional war
“Political Questions”
making powers. Lack of standards, many contingencies in
presidential exercise of military authority. Moreover, Congress can
protect interest through appropriations
Need for single voice, especially in foreign affairs: single, unified
voice in decisions on foreign affairs
treaty termination: Goldwater v. Carter (1979)—Court could not
decide whether President could unilaterally abrogate a treaty
Avoidance of controversy, other prudential reasons: avoid
damaging practical consequences
“Political Questions”
guaranty clause: might involve Court declaring illegality or
nonexistence of a state government
Vietnam War: might involving declaring unconstitutional
party conventions: avoid deciding on seating delegations at party
conventions. O’Brien v. Brown (1972)
legislative reapportionment: Colegrove v. Green—Guaranty
Clause. Baker v. Carr—equal protection clause. Reapportionment
justiciable under equal protection clause, one person-one vote
principle.
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Baker v. Carr
369 U.S. 186 (1962)
Facts: Tennessee had not reapportioned legislature for 60 years,
despite state constitutional requirement to represent on population
and significant changes in population over the years. Between 1901
and 1960, population had grown and redistributed. Because of
political makeup of state, amending state constitution is impossible.
Baker challenged
Baker v. Carr
apportionment as violative of the Guaranty Clause in a three-judge
district court. Action asking for declaration of unconstitutionality of
state law and injunctive relief. Lower court said federal courts do not
have jurisdiction over such disputes, citing Colegrove v. Green and
Luther v. Borden.
Triggering statute: Tennessee legislative reapportionment,
Tennessee constitution, and the gross malapportionment of the
legislature.
Baker v. Carr 369 U.S. 186 (1962)
Provision of the Constitution at issue: Brennan and majority say
Equal Protection Clause—No state shall deny any person. But
Frankfurter says is, like Colegrove v. Green, a Guaranty Clause
claim: Article IV, Guaranty Clause: The United States shall
guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence.
Baker v. Carr
Legal questions: Is state legislative apportionment a justiciable
issue, one a federal court can decide, or is it a political question? Is
this an equal protection or a guaranty clause claim? If it is
justiciable, then Baker et al. can press equal protection claims in the
lower federal court; if it is a political question, Baker et al. cannot,
even though their constitutional rights might have been violated.
Outcome/Vote: 6 (Black, Brennan, Clark, Douglas, Stewart, Warren) to
2 (Frankfurter, Harlan). Opinion of Court: Brennan. Concurring
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opinions: Douglas, Clark, Stewart. Dissenting opinions: Frankfurter,
Harlan.
Baker v. Carr
Legal reasoning: Justice Brennan, for Court:
This constitutional challenge is not political question. Primary
reason for prior holdings of political questions/nonjusticiability is
separation of powers.
Any question held political question will reveal: history of issue’s
management by another branch, lack judicially manageable stands
for solving it, impossibility deciding without policy determination
of non-judicial nature, impossibility of resolving without showing
lack of respect for coordinate branch, unusual need for adherence
to political decision made, potential embarrassment from multiple
pronouncements.
Baker v. Carr
The political nature of reapportionment does not make it political
question. None of usual features of PQ’s is present in this EPC
challenge. Nonjusticiability of Guaranty Clause claims has no
bearing on justiciability of EPC claims. Judgment reversed.
Remanded.
Holding/legal doctrine: Legislative malapportionment raises equal
protection issue. It is justiciable, since it does not pose problems of
Guaranty Clause claim. Thus legislative reapportionment is
justiciable, not a political question.
Baker v. Carr
Other views: Douglas (concurrence): federal courts have jurisdiction
over voting rights, can decide GC claims. Clark (concurrence): would
not decide if there were other way of Baker and friends getting
redress.
Harlan (dissent): Court cannot stop state from choosing any electoral
structure it wishes, unless it is irrational. Deference. Decision is
only appropriate for legislature to make.
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Baker v. Carr
Frankfurter (dissent): Long line of cases says GC cases not
justiciable. Not enforceable through courts. EPC provides no clearer
standards than the GC. Court is asked to choose among theories of
representation. (FF wrote plurality opinion in Colegrove v. Green—
SCt came close there to striking down Illinois law).
Baker v. Carr)
Political circumstances/implications:
Opened the way to invalidation of state legislative apportionments
of upper and lower houses, the federal house of representatives
Redistributed power from rural to urban populations
Permitted later challenges to gerrymandering
Restated, perhaps cut back on, political questions doctrine.
Walter L. Nixon, Jr. v. U.S.
506 U.S. ___ (1993)
Facts: Nixon a federal district judge in SD Mississippi. Appointed by
Johnson in 1968.
Accused of intervening in favor of Fairchild’s son on drug charge in
exchange for participation in sweetheart oil and gas deal.
Before grand jury, Nixon denied he had discussed case with DA or
intervened. Tried in federal court for perjury before grand jury
and accepting illegal gratuity. Convicted of lying to grand jury.
Sentenced to five years.
Judicial Conference of US recommended to House that it impeach
Nixon.
Walter L. Nixon, Jr. v. U.S.
House Judiciary Committee investigated. House voted 417-0 to
impeach for high crimes and misdemeanors.
In Senate, used Rule XI, appointed committee to receive and take
evidence. Twelve member committee heard case and reported to
Senate. Examined briefs, listened to witnesses, allowed Nixon to
make personal appeal. Four days of hearings. Recommended
removal of Nixon.
Senate as a whole voted in November 1989 to remove Nixon, 89-8
and 78-19.
17
Nixon sued in federal court, claimed Senate Rule XI violated
Constitution.
Walter L. Nixon, Jr. v. U.S.
Statute or rule triggering the action: Senate Rule XI—allows
committee to take and receive evidence in impeachment proceeding.
Walter L. Nixon, Jr. v. U.S.
Provision of the Constitution at issue: Article I, Section 3, clause 6:
the “Senate shall have the sole power to try all Impeachments. . .
When sitting for that Purpose, they shall be on Oath and
Affirmation.
When the President of the United States is tried, the Chief Justice
shall preside:
And no Person shall be convicted without the Concurrence of two
thirds of the Members present.”
Legal questions: Does Senate Rule XI violate the Impeachment Clause?
Is this a justiciable question, or a “political question”?
Walter L. Nixon, Jr. v. U.S.
Outcome/Vote: 9 (Blackmun, Kennedy, O’Connor, Rehnquist, Scalia,
Souter, Stevens, Thomas, White) to 0. Chief Justice Rehnquist for
Court.
Legal reasoning:
To determine whether there is textually demonstrable conferral of
an issue to a coordinate department, Court must look to text and
then to the question of judicially discoverable and manageable
standards.
The lack of discoverable and manageable standards strengthens
view that issue is given to other branch
Walter L. Nixon, Jr. v. U.S.
“Sole” in clause indicates that power to try resides in Senate and
nowhere else. Next two sentences spell out requirements for
proceeding.
Nixon argues that “Try” means more than what Senate has done.
It means elements of criminal trial, more than simply vote.
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Rehnquist: Try at time of framing had a broader meaning that
criminal trial—examine or judge. The word “try” as used lacks
sufficient precision to afford discoverable and manageable
standards for the Court to use in judicial review.
Three specific requirements mentioned in Clause suggest that
Framers did not intend additional requirements in the use of try in
first sentence.
Walter L. Nixon, Jr. v. U.S.
No one at Philadelphia suggested the possibility of judicial review
of impeachments.
Contrasts with specific discussions of judicial review of legislation
in ex post facto, bills of attainder, etc.
Framers thought impeachments should be heard in legislature not
the Supreme Court. Thought there would be two proceedings in
most cases—criminal trial, impeachment. Separation to avoid
bias.
Judicial review of impeachment inconsistent with separation of
powers—would eviscerate check of impeachment on federal
judiciary.
Walter L. Nixon, Jr. v. U.S.
Protection against Senate is division of impeachment between
Senate and House and the two thirds rule.
Lack of finality and difficulty of fashioning relief also work against
Nixon. Judicial review could expose nation to months of
controversy and great uncertainty in case of impeachment of the
President.
Legal doctrine: Decisions of Senate on impeachment not reviewable
in federal courts. Is a political question—committed to coordinate
branch, lacks discoverable and manageable standards.
Other views: Concurrences.
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Flast v. Cohen
392 US 83 (1968)
Facts: Taxpayers disagreed with the congressional spending in
subsidizing religious private schools, claiming that it violated the
establishment clause.
Procedural Posture: The taxpayers brought an action challenging the
spending act as unconsitutional under the establishment clause, and
the lower court dismissed under Frothingham.
Issue: Whether a taxpayer has standing when he alleges that the
congressional action under the
Flast v. Cohen
taxing and spending clause is in derogation of those constitutional
provisions which operate to restrict the exercise of the taxing and
spending power. General welfare clause.
Holding: Yes.
Majority Reasoning: The standard is lower when a taxpayer attacks
a federal statute on the grounds that it violates the establishment
and free exercise clauses of the first amendment.
Frothingham does not serve as an absolute bar to actions by
taxpayers, only as authority for exercise of discretion and self-
restraint.
The Court is not a forum for a taxpayer to air generalized grievances
about conduct of govt
Flast v. Cohen
If the taxpayer has a personal stake in the outcome of the
controversy, and the parties have adverse legal interests, then there
is standing if the taxpayer can show nexus between the status
asserted and the claim sought to be adjudicated.
That nexus exists where there is a specific constitutional limitation
imposed on the taxing and spending power of the Congress.
Dissent Reasoning: [Harlan] The court should not grant access to
taxpayers on its own in the absence of permission by Congress.
“Public actions” should only be brought under the authority of
Congressional statute.
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Flast v. Cohen
Comments on Subsequent Cases:
In U.S. v. Richardson, the Court held that a taxpayer did not have
standing to challenge the non-publication of CIA expenditures, on
the ground that there was no allegation that the funds were being
spent in violation of a specific constitutional limitation on
Congress’ spending power.
In Schlesinger v. Reservists to Stop the War, the Court refused to
recognize standing of the challengers because their injury was not
“concrete”
THE ASCHWANDER RULES
The Court developed, for its own governance in the cases within its
jurisdiction, a series of rules under which has avoided passing upon a
large part of all constitutional questions pressed upon it for decision.
They are:
1. The Court will not pass upon constitutionality of legislation in
friendly, non-adversary, proceeding, declining because to decide such
questions is legitimate only in the last resort, and as a necessity in
the determination of real and vital controversy between individuals.
by means of friendly suit, a party beaten in the legislature could
not transfer to the
THE ASCHWANDER RULES
courts an inquiry on constitutionality of legislative act. Chicago &
Grand Trunk Ry. Co. v. Wellman, 143 U.S. 339.
2. The Court will not anticipate question of constitutional law in
advance of necessity of deciding it.' Liverpool, N.Y. & Phila.
Steamship Co. v. Emigration Commissioners, 113 U.S. 33. Unless
absolutely necessary to a decision of the case. Burton v. United
States, 196 U.S. 283.
THE ASCHWANDER RULES
3. "The Court will not 'formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.'
Liverpool, N.Y. & Phila. Steamship Co. v. Emigration
Commissioners, [113 U.S. 33]."
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THE ASCHWANDER RULES
4. The Court will not pass upon a constitutional question although
properly presented by record, if also present some other ground upon
which case may be disposed [...] Thus, if case can be decided on either of
two grounds, one involving constitutional question, other question of
statutory construction or general law, Court will decide only latter.
Silver v. Louisville & Nashville R. Co., 213 U.S. 175, 191
THE ASCHWANDER RULES
5. The Court will not pass upon validity of a statute upon complaint
of one who fails to show that he is injured by its operation. Tyler v.
Judges, etc., 179 U.S. 405. In Massachusetts v. Mellon, 262 U.S.
447...the challenge of the federal Maternity Act was not entertained
although made by the commonwealth on behalf of all its citizens.
THE ASCHWANDER RULES
6. The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits. Great
Falls Mfg. Co. v. Attorney General, 124 U.S. 581...; Wall v. Parrot
Silver & Copper Co., 244 U.S. 407, 411, 412...; St. Louis Malleable
Casting Co. v. Prendergast Construction Co., 260 U.S. 469.
THE ASCHWANDER RULES
7. " 'When the validity of an act of the Congress is drawn in question,
and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question
may be avoided.' Crowell v. Benson, 285 U.S. 22, 62..."
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