Constitutional Law as study of POWERS & LIMITS

1. Constitutional Law as study of POWERS & LIMITS -- between Federal branches powers assigned to each branch checks & balances separation of powers --between Federal Government & State Governments traditional competencies defining federal power (supreme) federalism & State autonomy --between Government (majority) & individuals individual rights & liberties

2. Part One-- Federal Judicial Power & It’s Limits • Article III Framework for judicial power • Judges with “lifetime” tenure (good behavior) • Jurisdictional “ceiling”: federal questions (arising under Constitution, Federal Legislation & Regulations, Treaties) , diversity cases, miscellaneous (states, ambassadors) • Cases & Controversies (Justiciability limits below) • Supreme Court appellate & original jurisdiction • Judicial Review: Judicially Declared • Final Authority on Interpretation of Constitution • & Power to Declare Acts of Federal & State Governments Unconstitutional (includes state legislation & constitutions) • Power to interpret & apply “ordinary” federal law but Congressional intent controls (Congress may overrule by altering law) • NB: No authority over interpretation of State Law!

3. Judicial Review & Democracy • Critics: Exercise of judicial review disrupts democratic choices of majority (in the form of overturned legislation) • Judges are not elected nor otherwise accountable to electorate • Constitutional text is open-ended and “indeterminate” • Constitutional Interpretations by Court lack objective, neutral criteria • Equals “law making” by unelected judiciary • Proponents: • Constitution designed as flexible framework designed to evolve • Judicial self-restraint, impeachment, use of history & tradition • Functionally necessary since Courts only institution independent of majority will…able to resist abuse of individuals & minority • Part of Constitutional design which limits majority & democratic will via individual rights

4. Limits on Federal Judicial Power • Congressional Control Over Jurisdiction • Jurisdiction Defined & Limited By Congress • not required to authorize full extent of jurisdiction; • can define limits and make “exceptions” even if motive is to avoid review • But Congress can’t reverse or dictate outcome of cases (separation of powers) nor overrule Constitutional Interpretations • Impeachment • Doctrines of Self-Restraint (narrowest grounds possible; avoid Constitutional questions; adequate & independent State grounds; deference to legislature) • Justiciability

5. Justiciability • Key Black Letter Rules to Memorize, Understand and Apply: • Standing (definitions of Constitutional requirements of injury, causation & redressability); • Prudential Standing Limits & Rules; • Mootness Exceptions; • Ripeness Factors; • Political Question Factors

6. Standing • General Definition: requirement that litigant have adequate “personal stake” in outcome • Requires (Plaintiff’s burden): • Injury: real, actual or imminent not hypothetical or merely possible • Causation: injury is “fairly traceable” to challenged action by defendant • Redressibility: Court order likely to resolve P’s injury • Explanations & examples • Prudential Limits: • generalized grievances & • third party rights (standing) and its exception • Explanations & examples

7. Framework for Analysis? • Factual triggers for spotting standing issues • Logical steps in analysis (derived from rules) • E.g.,Constitutional Req’ments met (apply in order); prudential limits applicable?; If applicable do exceptions apply?; If yes, apply factors for exceptions…

8. Ripeness • Ripeness  is the controversy “ready” for judicial resolution • almost always involves a claim for declaratory or injunctive relief…(vs damages) • often involving proposed administrative or executive action….. • which relate to D's future conduct Ie…look for “Pre-enforcement Review” where Gov. could still make choices avoiding dispute • “two factors”: hardship & suitability

9. Mootness • Mootness Live controversy throughout dispute (final resolution…last appeal is decided) • Common circumstances rendering cases moot…. D dies…The challenged law is changed…Case is settled…P’s circumstances change • NB: Collateral Consequences • 3 major exceptions: • capable of repetition…yet evading review (to this plaintiff; reoccurring change in circumstances lead to mootness before resolution) • voluntarily cessation (defendant free to resume challenged actions; D’s “heavy” burden to demonstrate conduct not reasonably likely to resume) • class actions (if live controversy continues for class members) • Explanation & examples

10. Political Questions • political….NOT! Rather, separation of powers and institutional competency • Situations involving discretionary judgments left up to “political branches” and/or lack of adequate judicial standards • Factors: p126 • Textually demonstrable commitment to another branch examples most helpful • Lack of judicial standards for resolving issue requires weighing of policy, judicial involvement in non-judicial questions (are we at war?) • Also: • Lack of respect for other branch of govern… • Potential embarrassment of varying decisions by branches… • Need for finality in political decision • Note: Powell's alternative formulation  • 3 inquiries: textual commitment; beyond judicial expertise; other prudential considerations (embarrassment, finality)

11. Some Good Habits For Success: • Identify FactualTriggers (What facts trigger issue/ rule sets) • Memorize Key Words & Phrases • Explain Be Able to Articulate & Explain Concepts in Plain English • Examples & Illustrations • Contextualize With Other Issues & Rules (Rule Relationship) • Create Frameworks for analysis • For specific issues and overall