Where does FED or STATE legislature get its power?
i. – if abused their powers. It is up to the court to interpret it (Marbury v. Madison)
1. They don’t have the power, because it is not enumerated. Our govt is a govt of enumerated powers, or
2. Power was exceeded 14th Amend. § 5 Kimmel Test to see if the Congress esceeded ii. If breached its limits. There are immunities and privileges of the people and if they pass a law that breaches it Amend 14th §1 then also unconstitutional
i. Police Power ii. Federate and State constitutions
I. Political Question Doctrine
Political Questions are those committed by the Const. to another branch. Also, those that are inherently incapable of resolution and enforcement by the judicial process.
Baker v. Carr (TN failed to reapportion electorate districts for many years, so 1 vote in rural was 8 in suburban area). Not political question, issue of equal protection. Laid out the framework of what questions the court will count as political. Legislative apportionment used to be considered to be “political” before this case.
1. Foreign Relations (but if there has been no “govt action” the court may construe a treaty
2. Dates of duration of hostilities (but can determine if the exigency still existed when something has occurred that now is questioned)
3. Validity of enactments
4. The status of Indian tribes
5. Republican form of government
When in general defer to other branches and find POLITICAL QUESTION
a) commitment of the issue to other branch
b) lack of judicially discoverable and manageable standards
c) impossibility of deciding without the initial policy determination that involves nonjudicial determination
d) impossibility of court’s resolution without embarrassing the other branches
e) unusual need for unquestioning adherence to a political decision already made
f) impossibility of decision w/o expressing the lack of respect due to coordinate branches
II. Constitutional and self-imposed limitations on exercise of federal jurisdiction – policy of “strict necessity”
Justiciability of the case depends on whether the “case or controversy” [Art III §2, to all cases…, to controversies…, to controversies], but it should really be AND, because you need both, case and controversy.
1. No Advisory opinions. Advisory opinion – a non-binding statement by a court of its interpretation of the law on a matter submitted for that purpose. Muskrat v. United States (where they wanted to divide Indian land b/w more tribes then originally intended, congress passed the law allowing 4 individuals, including Muskrat, challenging the statute. SC said they are seeking advisory opinion no actual injury, no jurisdiction – case dismissed).
a. Case – a suit instituted according to the regular course of judicial procedure (Marbury v. Madison)
b. Controversy – TEST need
i. actual controversies, (not merely a hypothetical, theoretical, or speculative issue) ii. arising b/w adverse litigants, (here, although US is a party to the action, it has no interest adverse to claimants) iii. duly instituted in courts of proper jurisdiction.
c. ‘The right of court to declare a law unconstitutional arises because an act of congress relied upon by one or the other of such parties in determining their right is in conflict with fundamental law.’
d. Here, was brought for purpose of Testing – compensation to attorneys to be paid from the treasury and it is unacceptable.
e. Can’t have collusive suits, “fake controversies” US v. Johnson (rent control action, tenant against landlord agreed to bring claim to challenge Price Control Act of 1942). The public interest at stake is too important for one of the parties to be just nominally represented by counsel who was selected by opposing party’s counsel.
2. NOT the same as DECLARATORY judgments. Complainants must show that they have engaged (or wish to engage) in specific