Major Issues 4 Role of the Courts 4 Which branch authoritative interpreter of the Cx. 4 C/m difficulty 4 The Supreme Court and the Constitution 4
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Federal PowerMcCulloch v. Maryland (1819) MarshallHistoryBank of the US had failed to pay state taxSecond incarnation of Bank of US. No debate over Cx'ality this timePower to create the BankDeference to past practiceLegit of 1st bank authority for 2nd.Has passed the scrutiny of the FramersMaryland: Power comes from the States who are truly sovereignUS: People are sovereignUS: Supremacy clauseXth A. exclude "expressly"Structural argumentwould be too prolix if every power statedArt I s. 8 grants bank by implication (yes clause)Choice of meansArt I s. 9 does not forbid it. (no clause)Powers must have means for executionCx we are expounding!Necessary & Proper doesn't mean a crisis.look to use in Art I. s. 10"proper" is surplussage if nec. too broad."end be legit, within scope all not prohib are Cx" p.62Maryland's Power to Tax itPower to tax is power to destroyTaxation without representationBank is all U.S.'s - Tax is MarylandsStates cannot impede by taxation Cx lawsRepresentation-ReenforcementJusticiabilityAdvisory OpinionsNeed Actual DisputeGeorge WashingtonStandingGenerallyDocket control (prudential)Judicial restraint - Passive VirtuesFocus of case, adverserial, concrete disputesinsure against collusive litigationArt. III RequirementsInjury in FactActual of threatened injury personally sufferedideological - not enoughgov't not following the law - not enoughmight encroach upon Executive charge to uphold and enforce lawsLegal CauseInjury fairly traceable to wrongdoingLikelihood of redressabilityPrudential Requirments.Assert Own Rightsno 3rd partiesno exception for Gillmore.however Craig v. Boren bartender asserted rights of 18-20 male beer drinkers.No generalized grievencestax payer suitsZone of interestprotected by statute or constitutional guaranteee.g. Title IX protects women, not fansException:3rd Party StandingOrgs can sue on behalf of their members if:otherwise have standing on their own Interest is germaine to orgs purpose Neither the claim asserted nor the relief requested require the participation of individual members. Allen v. Wright (1984) (p.87)O’Connor, J.black school children sue IRS for not enforcing denial of tax exemptions to discriminatory schoolsharmed process of desegregationNot judicially cognizableno right to have gov't follow lawsinjury is uncertain and speculativeinjury not fairly traceable to alleged wrongdoingSep of powersnot role of courts to police executive implementationBrennanstanding is disguise for court's distaste for claimStevensSees the connection as obvioussees standing as tool to guarantee adversity, sees that here.no reason to do sep of powers analysis.Lujan v. Defenders of Wildlife (1992) (p.92)Scalia, J.FactsSec. of Interior ceases requiring commerce dept projects to comply with endangered species act. DOF sues to make them complySees Congressional created citizen's rights suits against procedural irregularity as expanding Art. III.The Executive is to "take care" no citizens through Art. IIIScalia sees no "animal nexus" or "vocational nexus"P's wont be harmed, no connectionP's don't prove they are going to visit the foreign country again.Sep. of powers argumentPolitical QuestionCaveatsIntroduced in Marburyjudiciary's fragile legitimacyChem and Tribe argue that it is robustCannot decideforeign relationsdates of hostilitiesGuarantee ClauseBaker Criteria (p.114)Any one of the following:textually demonstrable constitutional commitment of the issue to a coordinate political departmenta lack of judicially discoverable and manageable standards for resolving itimpossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretionimpossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of governmentunusual need for unquestioning adherence to a political decision already madepotentiality of embarrassment from multifarious pronouncements by various departments on one question.Guarantee ClauseLuther v. Borden (1849)two RI legislaturesGuarantee Clause cases are not justiciableonly can be decided by CongressBaker v. Carr (1962)Brennan, J.Legislative apportionment. Political process failure over time, old district lines lead to bad distribution of powerdoes not rest on Guarantee Clause Art. IV s. 4Find 14th A. equal protection caseFrankfurter, J.This is a Guarantee Clause case masquerading as a 14th A. caseShould be held nonjusticiable.Bush v. GoreRole of CourtsBickel - counter majoritarianKlarman - Worry for regard of courtYoo - One of a kind, won't see this againGarrett -JusticiabilityState law casePolitical Question - Baker Criteria12th A. Commits to houseNo federal questionFederalismValuescompete for affection of peopleFederalist 46efficiencydifferent solutions in different StatesPromotes individual choicefeds can enforce opinion that is minority in certain regionfolks can vote with their feet.McConnellgreater good for greater numberState A 70/30, State B 40/60.no federalism 110 people happy federalism 130 people happy Encourages experimentationBrandeis - laboratory.Promotes more participation - RapaczynskiPrevent tyrannyhold each other in checkFederalist 51fundamental bastion against a successful conversion of the federal governmnent into a vehicle of the oppression - RapaczynskiDirectory: public public -> Acm word Template for sig site public -> The german unification, 1815-1870 public -> Preparation of Papers for ieee transactions on medical imaging public -> Harmonised compatibility and sharing conditions for video pmse in the 7 9 ghz frequency band, taking into account radar use public -> Adjih, C., Georgiadis, L., Jacquet, P., & Szpankowski, W. (2006). Multicast tree structure and the power law public -> Duarte, G. Pujolle: fits: a flexible Virtual Network Testbed Architecture public -> Swiss Federal Institute of Technology (eth) Zurich Computer Engineering and Networks Laboratory public -> Tr-41. 4-03-05-024 Telecommunications public -> Chris Young sets 2016 “I’m Comin’ Over” Tour headlining dates Download 170.55 Kb. Share with your friends:
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