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Section 1 one SC and inferior lower courts if congress choses Section 2 judicial power limited by SBJ : scope of jurisdiction **can eliminate lower court, unsure ab appellate ct jurisdiction [mccardle/ klein] , but def cant mess with original ct jurisdiction ** Original jurisdiction: limited , only state party and foreign diplomats [ambassadors, public ministers] & can’t be expanded // only SCOTUS can hear rllllly important cases at first instance Appellate jurisdiction: all other cases, can be changed/expanded o Certain subject matters so states retain their sovereignty: 9 subjects:
Practical/functionalist support: uniformity of decisions and interpretations or else const wld have no effect and be diff in every state
(1) POLITICAL QUESTION/”judicial restraint doctrine” and ( 2) STANDING (1) POL Q = beyond the jurisdiction of the court // non-justiciable for court to answer the Q. Only time court is not final arbiter on a constitutional issue: ok for courts to look at racial gerrymandering, one-person one-vote, apportionment scheme when EP clause shows under Baker [vs. not if partisan gerrymandering / legislative redistricting under Rucho v Common Cause and Vieth v Jubelirer = no judicially enforceable stds ] , excluding HOR who mets all art 1 s2 cl 2 requirements [ Powell v McCormack = not a pol Q bc Q was whether congress possed a power to exclude a member based on criterion other than qualifications listed in const ] vs. NOT OK treaty/impeachment = usually not whether have tht power, but how 2 best exercise tht power = pol Q [impeachment = both (1) and (5)]
(3) impossibility of deciding without an initial policy determination [ like recognizing that a state exists] (4) impossibility of a courts undertaking independent resolution w/o expressing a lack of respect due to a coordinate political branch (5) an unusual need for unquestioning adherence to a political decision already made [ is there a war or not ???? what the court means when it says it cannot determine what “war” means] (6) potentiality of embarrassment from multifarious pronouncements by various departments on one Q [ to create a unified front] Theme 1 : Q’s given to some other branch/dpt or some other branch/dpt has more authority to decide it – 1, 3- Theme 2: lack of judicially manageable std: if it’s a pol, not legal, Q, then there’s no way for the court to come up w/ a legal std [Rucho v Common Cause] – 2
“theme” 3: foreign affairs : under (6) and (4) and first 2 always
(3) likely to be redressed by requested relief / injury linked to relief = relief from injury must be LIKELY TO FOLLOW FROM A FAVORABLE DECISION Not: o bank on future chokeholds cuz wont redress injury from past chokehold – Los Angeles v Lyons o making IRS take away tax exemptions might not get their kids into those private schools // they might discriminate anyways - Allen v Wright o timing matters: NYS rifle & pistol assn v city of NY: cnt say I wld be barred from transporting weapons besides 7 ranges when NY adopted an amended ordinance tht allowed direct transpo to other gun ranges and second homes Can say: o affirm action reversal will give u an equal chance to compete in every spot even tho might still not get into school – UC v Bakke if against 3rd^ party: [not b4 court, prob too speculative] The HHS Secretary is a third party – not before the court – whose actions are beyond that court’s control ( see Allen v. Wright ). Or, one might argue that the problem is redressability. Even if a federal court were to grant the relief sought (declaratory and injunctive; money damages are foreclosed see below), those remedies would only invalidate President Trump’s executive order. The HHS Secretary would still have discretion to “fast track” under the statute CANT: Doctor cant assert patients rights tileston v ullman Cant assert rights as a retired beneficiary for plan’s beneficiaries on the plans mismanagement even if ERISA act authorizes suits by beneficiaries theole v US bank But CAN: 1) Litigant Has A Concrete Injury And Interest In Outcome 2) Close Relation To 3rd Party And Either 3a) Hinderance To 3p Ability To Protect Self Or 3b) 3p If Asserting “Derivative Rights”: But abortion doctor can assert rights of patients when statute requires doctors who perform abortions to have admitting privileges at nearby hospitals June medical services v russo Assignments can: Assignee when collection firm standing in shoes of assignor: Spring Communications co v APCC CRIMINAL DEFENDANTS CAN ASSERT RIGHTS OF PROSPECTIVE JURORS DISMISSED BC OF RACE – powers v ohio Store owner in shoes of would-be customers when breach, not observance, of EP rights – craig v boren If war powers prob not if a senator
Section 8 tax & borrow $ for the general welfare [ clause 1 ], regulate commerce [ clause 3 ], naturalization, coin money & punish counterfeiting, post offices [ clause 7 ], copyright & patents [clause 8], lower fed cts/ inferior tribunals [ clause 9 ], declare war/define and punish offenses against law of nations [ clause 11 ], raise armies/navies and call forth militia [ clause 12 ] … and under Article II, w/ advice and consent of senate to make treaties , D.C. [District of Columbia], necessary & proper [clause 18 ] Biggest debate under N&P we know it goes to states if its not enumerated expressly. What if its implied under N&P clause?
people or things moving in interstate commerce ( having travelled or predictably will travel ) are instrumentalities of interstate commerce. With respect to the channels or instrumentalities of interstate commerce there is no need to show economic activity , see Art. I, sec. 8, “among the several states.”
- land regulation for surface mining regulations [Hodel] // coal mining
rate in Texas because ppl use Texas rate to manipulate where shipments go in Texas… interstate rate wld be disregarded if don’t regulate intrastate ]
- we defer to congress if its substantial, but this has been a bit overruled by Morrison and lopez [ cong findings are fine, but were not bound by it]
11 th^ case) U.S. v Morrison in 2000: only intrastate economic activity regulation ok [and intrastate rape is not commercial]. Woah what!!!!! Well no Raich [weed] yet, only Wickard..
commerce is derived not only from the Commerce Clause, but primarily from the Necessary and Proper Clause, which allows Congress to do whatever it deems necessary to accomplish its regulatory objectives. In deference to this constitutional provision, Congress may regulate even those intrastate activities that do not substantially affect interstate commerce. Congress’s power under the Necessary and Proper Clause is far- reaching.
lay and collect taxes, to pay the debts and provide for the general welfare and common defense” = §8, cl. 1
IF YOU CANT GET IT UNDER COMMERCE: Commerce Clause does not give Congress the power to violate other provisions of the Constitution. Under Tenth Amendment principles, Congress does not have power to order states to adopt laws.--> TRY SPENDING CLAUSE! SPENDING CLAUSE from art I, §8, cl. 1: like taxing, need to say what its for, can be for the “general welfare” ********
- aka = power cannot be used to induce/COERCE states to engage in activities that would themselves be unconstitutional [ NOT that it’s a prohibition on indirect achievement of objectives which Congress cannot directly achieve = that’s ok, Congress can do that]