Nature of Judicial Review

Marbury v. Madison
I. Facts
a. 1800 Presidential Election- Democrat-Republican, Thomas Jefferson
defeats federalist President John Adams.
i. Shift from Federal Power
b. In the final weeks of Federalist control, Congress passes an act allowing
John Adams to appoint 42 justices who are going to be loyal to the
federalist party. Including to one of these justices is Marbury.
c. The Secretary of State and Chief Justice of the Supreme Court, John
Marshall, is given by John Adams the signed commission of Marbury in his
final hours of presidency.
d. Thomas Jefferson becomes president and sees these federalist judges be
appointed. He sees the remaining signed commission, including, Marbury,
and orders for these commissions to not be delivered.
e. Marbury waits for these commission papers and finds out that Thomas
Jefferson ordered for the commissions not to be delivered.
f. Pursuant to Section 13 of the Judiciary Act of 1789, Marbury seeks a Writ
of Mandamus directing TJ’s Secretary of State, Madison, to deliver his
commission.
i. Writ of Mandamus= typically where a court is ordering a
government official to execute some official duty that the
government official has.
ii. Section 13 of the Judiciary Act of 1789= In warranted cases,
the Supreme Court can issue Writs of Mandamus to compel
government officials to perform a certain act.
g. Supreme Court has a difficult decision to make  Marshall states that if
Marbury were to win, Marshall risks being in conflict with the President, TJ.
If TJ wins, Marshall looks weak and doesn’t have that power.
h. John Marshall finds a way to avoid issuing a decision on the
merits. Balances power and avoids conflict.
i. Marbury should be entitled to some form of relief, BUT, the problem
with his claim is that Marbury relied on Section 13 to bring this claim
but Section 13 is in conflict with Article III, Section 2 of the US
Constitution.
ii. Article III, Section 2= There is two types of claims that
Federal Courts will have original jurisdiction over. Subject Matter
Jurisdiction-
1. Cases that arise under federal law; or
 2. Cases that have diversity of citizenship.
a. If the Court does not have these two, they can hear
the case through Appellate Jurisdiction.
b. Section 13 provides another way for someone to have
original jurisdiction in the Supreme Court, which
expands the jurisdiction of the Supreme Court, which
is UNCONSTITUTIONAL.
iii. Holding= Even though there is a strong case, they cannot hear the
case because the statute is unconstitutional.
II. Importance of Marbury v. Madison
a. The US government must be based upon the rule of law.
i. Section 13 expands the power of the Supreme Court and yet they
are adhering to Article III even when it costs them jurisdiction.
b. The US Constitution is the supreme law of the land.
i. Hierarchy:
1. Constitution
2. Judiciary Acts (Federal Law)
c. The holding solidifies that the judiciary has the power of
Judicial Review.
i. Article III does not state that the Supreme Court has the power to
review acts by Congress to see if they are consistent with the US
Constitution.
ii. Marbury establishes that the Supreme Court may review law
passed by Congress to determine whether the law is consistent with
the US Constitution.
III. Supreme Court has the power of Judicial Review to determine
whether a law passed by Congress is consistent with the US
Constitution.
a. The power to review law and determine its constitutionality.
IV. Analysis based on Judicial Review
a. Marbury gave the Supreme Court the power to review
law and determine whether that law is constitutional or
not constitutional.
The Doctrine of Justiciability
I. Article III Section 2
a. This section extends jurisdiction of the Supreme Court, but only extends it
to Cases or Controversy.
b. In order for a federal court to issue a ruling, there has to be an actual case
or controversy. Advisory opinions cannot be issued.
i. When a federal court hears and decides a case, there must be the
power or authority for the court to hear the case under Article III
Section 2.
ii. Question: Whether the question presented to the Court
meets the case or controversy requirement of Article III
Section 2.
1. If yes The case is justiciable
2. If no The case is nonjusticiable and needs to dismiss the
case
c. Requirement 1: Federal Courts cannot issue non-binding
opinions absent an actual case or controversy. (Cannot give
advice)
i. Under the Federal Declaratory Judgment Act  Federal Courts
may declare present rights on established facts arising out of a
case or controversy of sufficient immediate or reality.
1. This declares the present rights to the parties.
2. Declaratory Judgment appears to be advice, but it is an
actual case or controversy.
a. Ex) A cease and desist letter has been sent.
ii. Hypothetical Cases- Court cannot get involved.
1. There needs to truly be adverse parties.
2. Non-Adverse Parties= When the P and D collude together.
d. Requirement 2: Constitutional Standing
i. Standing= A Federal Court cannot adjudicate a case unless the P
has Standing.
ii. Constitutional Standing Elements:
1. Injury in Fact
2. Causation
3. Redressability
iii. Injury in Fact- The injury the P experiences must be concrete.
Actual and Imminent. (Future injuries are not entirely excluded)
1. Lujan v. Wildlife- Defenders of Wildlife want the law to apply
to actions in the US and outside of the US. Wildlife didn’t
 sustain an actual and imminent injury in order to have
standing.
a. Wildlife Argument- The loss of Wildlife all over the
world would affect everyone and could be an issue to
the environment.
b. Court’s Response- There was no concrete and
particularized injury, and it is too generalized.
2. Generalized Grievance- Not going to work! The plaintiff must
be the one with the concrete and particularized injury.
iv. Causation- The injury must be fairly traceable to the D’s conduct
and/or action.
1. The further the casual chain gets extended, the harder it can
be to trace the injury to the D’s conduct.
2. Plaintiff v. IRS= IRS will have a policy that will either
incentivize or decentivize certain actions.
a. P must trace the injury that he/she is enduring to the
IRS changing their policy.
3. If causation cannot be established, the court cannot hear the
case.
v. Redressability- it must be likely that a favorable court decision will
redress the P’s injury.
1. Linda v. Richard= Issue is that Linda doesn’t have standing.
Why?
a. Linda is not suing and seeking for monetary damages.
She’s seeking an injunction to compel the District
Attorney’s office to prosecute Richard.
b. Putting Richard in jail will not remedy her economic
loss.
c. If Linda sought economic damages, it would be likely
that she has standing.
e. Requirement 3: Prudential Standing Requirements (Judge
Made)
i. 3rd party standing or asserting the rights of others- A
litigant
cannot rest his claim on relief on absent third
parties.
ii. Whoever sustained the injury should be the party coming to court,
not the third-party litigant.
iii. 3 Exceptions:
1. If the absent third party would experience difficulty or is
unable to assert their own rights.
 2. If there is a special or close relationship between the P and
absent third party.
a. A parent asserting the right of a child.
b. School asserts the rights of a student.
c. But, can doctors assert the rights of their absent third-
party patients?
i. The doctor must have the standing to assert
the right of his patient.
1. Does the doctor have constitutional
standing?
2. Under a prudential standing
requirement, can the doctor assert the
rights of an absent third-party litigant?
3. If 2P’s injury adversely affects P’s relationship with the
absent third party, 2P can assert the rights of the absent third
party. (ex. Buyer and Seller)
a. 2P’s injury of economic loss adversely affects P’s
relationship with the absent third party
f. Timing Issues
i. Ripeness= A federal court will not consider a claim before it has
fully developed. P must have an injury in or a real imminent threat
thereof.
1. A law that’s passed that looks unconstitutional and the law is
not enforced  The federal court will not consider the claim
because P has no real injury.
ii. Mootness= An actual controversy must exist at all stages of review.
1. By the time the case goes to the Supreme Court and it
basically resolved itself, the Supreme Court will not review.
Unless  Capable of repetition, yet evading review;
voluntary cessation; and class actions.
11th Amendment State Sovereign Immunity
I. How to Analyze State Sovereign Immunity
a. Three major categories of constitutional law questions:
i. Power of the Feds
ii. Federalism
iii. Individual Rights
b. Power of the Feds- Anytime on a constitutional law fact pattern of the
federal court, the president, or congress taking action, we must ask the
question:
i. Where does this fed get the power to take this action?
Does the constitution allow them to take this action?
c. Anytime a Federal Court hears and decides a case, they are exercising
their power: Does this federal court have the power to hear and
decide the case?
i. Question: 11th Amendment – Bars citizens of one state from suing
another state in federal court.
1. However in Hanz, the Court extended that reach to citizens
suing their OWN state in federal court.
2. Also prohibits citizens from suing state officials for violating
state law in federal court.
d. Federal Court Question: P v. D
i. Is this a federal court?  If it’s a state court, the 11th Amendment is
not an issue.
ii. Who is the D?  If the D is a state, state agency, or state official,
11th Amendment analysis is probably necessary.
1. Ex) D is Texas or Texas Department of Public Safety, then,
we know in federal court, the 11th Amendment is going to
PROHIBIT that claim.
2. Absent an exception, the 11th Amendment is going to
prohibit a citizen from suing another state, or state
official, or state agency in federal court.
iii. Exceptions to sue State:
1. Consent- State is waiving its 11th Amendment protection.
2. Congressional Authorization- Congress can aggregate state
sovereign immunity if they are doing so to enforce their 14 th
Amendment power.
a. This allows private citizen to sue their state
government. If Congress expressly authorizes the
 plaintiff to sue the State, so long as they are doing it
for the purpose of enforcing the 14th Amendment.
iv. Exceptions to sue State Officials:
1. Consent- State official could consent
2. Congressional Authorization
3. Injunctive Relief- The P is suing the state official not for
monetary damages, but TO ENJOIN them.
a. They want to compel a state official to comply with the
federal law or stop them from violating federal law.
4. Representative Capacity- Immunity under the 11th
Amendment is not guaranteed as a state official.
a. If the state official is personally liable and paying the
bill, then the 11th Amendment will not bar him from
being sued.
b. Is this state official acting within their representative
capacity?
II. Checklist:
a. Does the Federal Court exercising power, have the
power to hear and decide this case?
i. 11th Amendment- Look at D to check if the D is a
state, state official, state agency, and it is in
Federal Court.
b. Is the case justiciable? (State Exceptions)
i. If not barred by the 11th Amendment and
justiciable- then the Federal court has the power to
hear and decide the case.
c. Who is the P?
i. If a federal government or state government, then
11th Amendment is not to be worried about.
ii. ONLY PRIVATE CITIZENS SUING STATES