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

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!

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

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 

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

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

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…

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

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

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)

Some Good Habits For Success: Identify Factual Triggers (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