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
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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