FEDERAL COURTS AND JURISDICTION

1.

JUDICIAL REVIEW INTRODUCTION: SCOPE AND PURPOSE OF FEDERAL JUDICIAL POWER

Who gets to decide?
A.

Marbury v. Madison (pg 241)

i.

Facts:
1.

ii.

Who won?
1.

iii.
iv.

v.

B.

Not really, because he would have lost the case if there was jurisdiction. Judicial supervision of the presidency
created.

Limits Drawn
1.

viii.

No. Only for lack of jurisdiction

Was Jefferson happy?

1.

vii.

Madison, because no order was delivered because of jurisdictional issues.

Did Marbury get commission?

1.

vi.

Marbury believed he was a newly appointed a judge. His commission paper is completed, signed, and sealed under
the 11th hour of the Adams administration. The commission is never delivered to Marbury. Jefferson was sworn in
the next day and made the commissions null and void and refused to complete the delivery. Marbury filed suit.

Political Domain
a.

Domain of law- presidential supervision

b.

Domain of politics- no supervision

Are there any areas of Presidential decision making where the President is the only decision maker and not accountable to the
courts?
1.

Power of Appointment- accountable under Senate not judicial review. Accountability is purely political here.

2.

Troop deployment with no Congressional Authorization-Commander in Chief can make the decision and military
judgment is not subject to judicial review

Intermediate Marbury View

1.

Constitutional Power of Federal Court to decide a case

2.

Are not binding on the other branches, states are competent to read Constitution differently from Supreme Court.

Strong Marbury View

1.

Constitutional Power of Federal Courts to say what the law is...

2.

The other branches should follow Supreme Court

Supreme Court review of State Court Decisions

The state courts were prior to the federal courts in any regime
1875- Federal Jurisdiction Statute (federal question/ amount in controversy)
i.

Martin v. Hunters Lessee (strong Marbury) (p. 70)

1.

Rule: The Supreme Court has Constitutional and statutory authority to review decisions of highest state courts on
federal questions.

2.

Facts:
a.

3.

Issue:
a.

4.

Does the appellate power of the Supreme Court extend to the state courts?

Question of Constitutional Power (J. Story):

a.

5.

In 1791, Martin (plaintiff) instituted a land dispute case against Hunters Lessee (Hunter) (defendant) in
Virginia state court. In 1810, the Virginia Court of Appeals held for Hunter. The United States Supreme Court
reversed in 1813, but the Virginia state courts did not respect this ruling. The Supreme Court reviewed the
case again and held that it had statutory authority to review state court decisions and that such authority was
constitutional.

The judicial power shall extend to ALL casesarising under federal law Appellate Jurisdiction extends
to all Courts. State courts are bound by the Supremacy Clause.

Considerations of Policy:

a.

Necessity of Uniformity of Decisions throughout the entire U.S.

i.

b.
6.

State interests or biases may obstruct justice

History:
a.

7.

Constitution envisions that federal claims would arise in state as well as federal courts and that such would
review decisions.

If there is no statute?
a.

ii.

Statutory rights are creations of Congress. Is there an implicit or explicit limitation?

Murdock v. City of Memphis (p. 73)

1.

2.

3.

Facts:
a.

Murdocks give land to city on condition that naval depot be built. City gives land to US, and US gives up plan
to build depot. Then act of Congress gives land back to city.

b.

Murdock argues that, once plan given up, land reverted back to him. Loses in Tenn. Supreme Court.

Two issues:
a.

State property law: did the land revert?

b.

Federal law: did the act of Congress give land to the city?

Murdock argues that 1) Supreme Court can hear the case as a federal question; 2) its review should extend to all
questions in the case.
a.

4.

Wants review on all questions as his state claim is much stronger (the federal act is pretty clear).

Held: Supreme Court review of state decisions limited to the federal questions.
a.

5.

6.

Thus, they confirm that Tenn. read the statute right, and thats all. Murdock loses.

Policy:
a.

1) Respect for state law integrity, federalism.

b.

2) Avoidance of advisory opinions

Counter-argument:
a.

Statute under Radical Republican Congress deleted last sentence of 25 of Judiciary Act in 1867, eliminating
express limitation of review to federal questions.
i.

b.
7.

Plausible they wanted to use fed courts to reign in states. Habeas expanded at the same time.
But: Murdock may be constitutionally required.

Murdock requirements:
a.

1. Must be a federal question

b.

2. Necessary to the judgment

c.

3. Against the right holder

i.

2.

If there were no revising authority to harmonize the uniformity, each state may differently
interpret each statute or treaty of the U.S. or even the Constitution itself.

This no longer required

THE POWER AND RESPONSIB ILITY OF STATE COURTS TO ENFORCE FEDERAL LAW
A.

Statutory Law
i.

From Power to Duty

ii.

Testa v. Katt (US 1947) sale of car violates federal price controls. RI Supreme Court refuses to enforce foreign laws,
including US.
1.

Held: State courts cant discriminate against federal claims. Must hear the federal claims unless they have a
valid excuse. (A state court of competent jurisdiction may not refuse to enforce federal law)
a.

Valid excuse = neutral rule applying to all claims. Cant discriminate against federal claims.
i.

E.g., of valid excuses: if sue in wrong court (e.g., traffic court), forum non convenience rules that
apply to all claims.

b.

Source of authority: Supremacy

c.

Might be less troubling to commandeer a judiciary

d.

Supremacy Clause only applies to judiciary

iii.

The FELA Cases

1.

Mondou.
a.

iv.

In Mondou v. New York, (1912), the Court held that a state may not refuse to enforce a federal law on the
ground of an offense to state public policy.

* Howlett v. Rose
1.

Rule of Law
a.

A state court of competent jurisdiction may not refuse, on the basis of sovereign immunity, to hear a case
where no sovereign immunity defense would lie if the case were brought in federal court.
i.

Federal claims trump state defenses

ii.

State courts must ordinarily hear federal claims

1.

2.

Facts
a.

3.

No. The Florida courts dismissal of Howletts suit on sovereign immunity grounds violated the Supremacy
Clause. States are bound to follow and enforce federal law. A state court may not refuse to hear a properly
brought federal claim unless it has a valid excuse, such as the application of a neutral procedural rule or the
courts lack of jurisdiction. Here, Florida lacked a valid excuse. It empowered the Circuit Court of Pinellas
County, as a court of general jurisdiction, to hear 1983 claims by private citizens against individual public
officials and tort claims against state entities including school boards. Had Howlett alleged that the school
board violated a state statute, the court would have heard the case. Had Howlett filed his suit in a federal
court, no sovereign immunity defense would have been available. Under these facts, the Florida courts
extension of absolute immunity to federal constitutional law violates the Supremacy Clause. The judgment is,
therefore, reversed.

Haywood v. Drown
i.

Rule:
1.

Only a neutral jurisdiction rule will be deemed a valid excuse for departing from the default assumption that
state courts have inherent authority and are thus presumptively competent to adjudicate claims arising under the
United States.
a.

ii.

iii.

Petitioner was an inmate at a NY correctional Facility. He commenced two actions against several corrections
employees alleging violations of his civil rights. Petitioner proceeded pro se and sought out damages and attorney
fees. The trial court dismissed the case on grounds that it lacked jurisdiction to entertain any suit arising under
state or federal law seeking damages from correctional officers for actions taken in the scope of their employment.
The NY Court of Appeals affirmed.

Issue:
1.

iv.

In determining whether a state law qualifies as a neutral rule of judicial administration, cases have
established that a state cannot dislocate itself from federal law because of a disagreement with its content or
a refusal to recognize the superior authority of its source.

Facts:
1.

May a state court of general jurisdiction refuse, on sovereign immunity grounds, to hear a 1983 case against
a school board?

Holding and Reasoning (Stevens, J.)

a.

B.

Howlett (plaintiff), a Florida high school student, brought an action in the Circuit Court for Pinellas County
under 42 U.S.C. 1983 against the county school board and three school officials including Rose
(defendants). Howletts complaint alleged violations of the 4 th and 14 th Amendments of the United States
Constitution and like provisions of the Florida Constitution. The court dismissed his suit on the grounds that
Florida had not waived its sovereign immunity so as to permit a state court to hear a 1983 action against a
school district. Florida circuit courts had in the past, however, entertained 1983 suits against individual
public officials, similar state-law claims against state defendants, and tort suits by private citizens against
state entities including school boards. Howlett petitioned the United States Supreme Court for certiorari.

Issue
a.

4.

Possible exception: neutral state rule of procedure (applies to all claims, federal and state claims alike)

Whether Correction law 24 as applied to 1983 claims, violates the Supremacy Clause.

Holding:

1.

Yes. Only a neutral jurisdiction rule will be deemed a valid excuse for departing from the default assumption
that state courts have inherent authority and are thus presumptively competent to adjudicate claims arising under
the United States.
a.

v.
C.

In determining whether a state law qualifies as a neutral rule of judicial administration, cases have
established that a state cannot dislocate itself from federal law because of a disagreement with its content or
a refusal to recognize the superior authority of its source. NYs law regards the suits against correction
officers for damages as too frivolous or too numerous, the policy merely shields a narrow class of defendants
from liability when sued for damages. Reversed and remanded.

Dissent: Should have been analyzed under Art. III 1 and not supremacy clause.

Constitutional Law
i.

Constitutionally Required Remedies in State Court

1.

McKesson v. Division of Alcoholic Beverages

a.

Facts:
i.

b.

Issue: Whether prospective relief exhausts the requirement of federal law.

c.

ii.

No, if a state places a taxpayer under duress promptly to pay a tax when due and relegates him to
post payment refund action in which he can challenge the taxs legality, the due process clause
obligates the state to provide meaningful backward-looking relief to rectify any unconstitutional
deprivation. The Florida SC cites two equitable considerations to why no relief was granted, but
neither is sufficient. 1. Good faith statute 2. State would be burdened by the refund. Both
undermine the states ability to engage in sound fiscal planning state argument for a federal
claim.

ii.

Jurisdiction: Florida decided this case on the merits, thereby taking jurisdiction over this case that
presents a Federal Claim. Florida argues that 11 t h amendment precludes the federal courts from
entertaining suits against states filed by citizens of their own state. However, the SCOTUS held
that federal claims are subject to review by the federal court even if the defendant is a state
government (Similar to Martin v. Hunters Lessee without the 11 t h Amendment).

Bait and switch procedure violates Due Process.

Against Federal Officials

i.

Tarbles Case pg 63
1.

Facts:
a.

Tarble enlists in military, but is a minor and without consent of his father. Father files in state court to spring
his child from the military and wins. A court order from the state was sent to the recruiting officer to release
him.

2.

Issue: Can a state issue a writ of mandamus to habeas corpus nor mandamus ( McClung pg 65 to a federal officer.
The relief sought was a specific relief (form of injunctive relief) may be able to issue a damages order.

3.

held: State court cant issue writs of habeas corpus, nor mandamus ( McClung ), to federal officers.
a.

Other injunctions are an open question.

b.

But can sue for money damages (Teal v. Felton ), if immunities dont apply. Will probably be removed if officer
makes federal defense (Tenn v. Davis )

c.

Concern: state shouldnt be allowed to commandeer federal government.

4.

Right to sue- Habeas clause

5.

Right not to be in custody

a.

Holding:
i.

Reich v. Collins
1.

D.

McKesson brought suit questioning the Constitutional validity of Floridas liquor tax. (Commerce
Clause). Florida gives preferential tax rates to liquors made with local fruits and bottled locally.
The lower court found that is was unconstitutional and issued an injunction but refused to order a
refund of overpaid taxes.

Suppose in current times, what is Congress precluded federal courts from hearing particular constitutional
claims or class of cases by passing a statute that restricted jurisdiction?

i.

There is such a statute that currently exists. Congress can restrict jurisdiction of lower federal
courts as it sees fit. No person held at Guantanamo may bring suit against federal personnel in
any federal court or state court.

ii.

Can a state court go beyond this?

1.

3.

Supremacy Clause: The State courts shall enforce the Constitution.

CONSTITUTIONAL AUTHORIZATION OF AND RESTRAINTS ON THE EXERCISE OF FEDERAL JUDICIAL

POWER
A.

Article III Limitations on Federal Judicial Power

i.

Standing to Sue
1.

The Constitutional Requirements

a.

Article III extends to cases and controversies (also a statement of limitation)

i.

What is not a case?

ii.

What makes a case a case?

a.

Injury (intermediate Marbury)

i.

iii.

Fairly traceable

c.

Redressable by court order

Authorization of Judicial Power

1.

iv.
b.

But also, alienation

No Advisory Opinions

Allen v. Wright
i.

Rule of Law
1.

ii.

iii.

Parents of black public school children sued the IRS alleging that by denying tax-exempt status to racially
discriminatory private schools, the IRS was harming their children in two ways. First, the IRS was in fact
giving financial aid to racially segregated institutions. Second, the conduct encourages the operation and
expansion of such schools and this interferes with desegregation of the public schools.

Issue:
1.

iv.

To have standing to bring a lawsuit, plaintiffs must sufficiently allege that they have personally suffered a
distinct injury, and the chain of causation linking that injury to the actions of a defendant must not be
attenuated.

Facts:
1.

Did the plaintiffs have standing to bring this suit?

Holding: No.
1.

2.

Must be:
a.

Injury

b.

Congnizable (to think Knowledge) within a courts power to hear it.

c.

Fairly traceable

d.

Redressable

Injury you cant sue the government just because they are violating a law. This is a generalized grievance.
a.

I.e. Aunt Ruth and her anger about the illegal nudity on Blacks Beach.

3.

Causation you have the right to go to a desegregated school, but the harm cannot be traced back to the IRS.
[They didnt get the requirements even though there was an injury; they couldnt show that the IRSs conduct
was traceable to their inability to attend desegregated schools.]

4.

Injury arguments:
a.

Does the fact that one thinks shes injured make it injury?

b.

Parents said that by giving these schools the status, it was undermining the attempt to have
desegregated schools actually become desegregated.
i.

Cognizable

ii.

Not fairly traceable (no causation)

iii.

Not redressable

b.

v.

vi.

This is not recognized by the majority

The IRS isnt enforcing the rules properly? (fairly traceable to government policies)

iii.

Not cognizable

1.

For the past 30 years education, has been important, so that is an injury.

2.

Plaintiff identifies very specific schools and school districts where they are not following desegregation
orders.

Dissent (Brennan, J.)

vii.

The children are being denied the opportunity to attend desegregated schools. The allegation of this injury is
enough to grant the parents standing.

Dissent (Stevens, J.)

1.

The parents alleged a sufficiently personal injury to justify upholding their standing. The parents adequately
alleged an injury in fact based on their second claim that the IRSs actions prevented their children from
attending desegregated schools. Additionally, the parents alleged sufficient causation between the actions of
the IRS and the injury suffered by their children because the effect of the IRSs actions was to subsidize
white flight to private schools with segregating policies. There is no separation of powers bar to the
Supreme Courts adjudication of this dispute because these two elements were present.

Duke Power (p. 278)

i.

Rule of Law
1.

ii.

iii.

The Price-Anderson Act of 1957 established limits to the liability which operators of nuclear power plants
would face in the event of a nuclear accident. After the Act was renewed in 1975, Duke Power Company
(defendant) began to construct two new nuclear power plants in North Carolina and South Carolina. Carolina
Environmental Study Group (plaintiff), along with a labor union and 40 individuals who lived near the sites
of the new power plants, filed suit in federal court against Duke Power and the Nuclear Regulatory
Commission to challenge the constitutionality of the Price-Anderson Act. The district court found that the
plaintiffs had standing and concluded that the Act was unconstitutional. Duke Power petitioned the United
States Supreme Court for review.

Issue
1.

iv.

A plaintiff has standing to bring a claim before the court when the plaintiff can demonstrate injury in fact, a
causal link between the injury and the challenged action, and the ability of the court to provide relief from the
injury.

Facts
1.

Does a plaintiff have standing to bring a claim before the court when the plaintiff can demonstrate injury in
fact, a causal link between the injury and the challenged action, and the ability of the court to provide relief
from the injury?

Holding and Reasoning (Burger, C.J.)

1.

i.
ii.

Brennans dissent

1.

c.

Mere fact that of tax aid to the schools. (insufficiently personal)

Yes. A plaintiff has standing to bring a claim before the court when the plaintiff can demonstrate injury in
fact, a causal link between the injury and the challenged action, and the ability of the court to provide relief
from the injury. The district court identified several immediate impacts that the plaintiffs would experience as
a result of the construction and operation of a nearby nuclear power plant. Without going into each of the
identified impacts, we note that the pollution of waterways and the emission of radiation into the environment
present the type of injury in fact necessary to meet standing requirements. The second step of the standing
analysis requires an inquiry into the causal link between the plaintiffs injuries and the challenged actions.
The district court concluded that there was a substantial likelihood that the new power plants would not be
constructed in the absence of the liability limitations afforded by the Price-Anderson Act. Duke Power
challenges the district courts findings on two grounds. First, Duke Power argues that the plants would have
been constructed even without the assurances of the Price-Anderson Act. The record of testimony presented
to Congress prior to the passage and renewal of the Act supports the district courts conclusion that the plants
would probably not have been constructed but for the passage of the Act. Duke Powers second argument
similarly proposes that that the plaintiffs injuries would have occurred even in the absence of the PriceAnderson Act, because the government would have undertaken the construction of new nuclear power
facilities. This assertion is purely speculative and a plaintiff is not required to negate every hypothetical
possibility in order to assert standing. Duke Power also asserts that the plaintiffs need to demonstrate a nexus

between their injuries and the constitutional rights they seek to assert under the standing requirements the
Court set forth in Flast v. Cohen, 392 U.S. 83 (1968). The standing requirements of Flast only apply to
citizen challenges to the taxing and spending powers of the federal government. We have, in prior cases,
denied standing where the injuries asserted by plaintiffs have amounted only to generalized harms shared
equally by a large number of citizens. The rationale for denying standing in such cases is to avoid
adjudicating the rights of citizens who may not wish to assert those rights and to ensure that a particular issue
is represented by those in the best position to act as effective advocates. This case does not present the
concerns that justify denial of standing. The policy concerns underlying the standing doctrine are satisfied
when a party presents actual, individualized injuries that may be redressed by judicial action. The plaintiffs
have standing to challenge the constitutionality of the Price-Anderson Act (held constitutional). Because we
have concluded that the plaintiffs would suffer immediate injury from the construction and operation of the
new power plants and that granting the relief they request would remedy that injury, we further conclude that
this issue is ripe for adjudication. Delaying resolution of this case would not only foreclose the plaintiffs
ability to seek relief from their injuries, it would deprive Duke Power of certainty with respect to its liability
exposure under the Price-Anderson Act. The Court would not be in any better position to adjudicate this
matter at some future time than it is at present.
v.

Concurrence (Stevens, J.)

1.

Clapper certainly impending (p. 272)

d.
i.

Rule of Law
1.

ii.

iii.

The Foreign Intelligence Surveillance Act of 1978 (FISA) authorized the United States government to
conduct surveillance on non-U.S. citizens that were outside the U.S. Amnesty International USA, et al.
(plaintiffs) are lawyers, journalists, and human rights researchers, among other things, who do work that often
has them communicating with individuals abroad that the plaintiffs claimed are likely to be subject to
surveillance under FISA. The plaintiffs brought suit seeking a declaratory ruling that this portion of FISA was
unconstitutional. The plaintiffs claimed that there was an objectively reasonable likelihood that the
plaintiffs communications would be recorded under FISA. Alternatively, the plaintiffs claimed that given the
risk of surveillance, they had to spend significant funds to ensure that their communications were kept
confidential. The court of appeals ruled that the plaintiffs had standing to bring the suit. The United States
Supreme Court granted certiorari.

Issue
1.

iv.

Threatened injury must be certainly impending to constitute injury in fact for purposes of Article III standing.

Facts
1.

I believe that the chain of causation between the Price-Anderson Act and the plaintiffs injuries is too
speculative to support a finding of standing, but I concur in the judgment simply because it offers an
important determination of the constitutionality of the Price-Anderson Act.

Must threatened injury be certainly impending to constitute injury in fact for purposes of Article III standing?

Holding and Reasoning (Alito, J.)

1.

Yes. To establish standing, a party must establish that its injury is concrete, particularized, and actual or
imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. More specifically,
threatened injury must be certainly impending to constitute actual or imminent. In the present case, the
plaintiffs do not present any evidence that their communications have been intercepted by FISA. To the
contrary, they merely claim that there is an objectively reasonable likelihood that their communications
will be intercepted in the future. However, the plaintiffs have no knowledge of how the government uses or
plans to use this portion of FISA.

2.

For the plaintiffs speculations to come true, five separate occurrences must come to maturity: (1) the
government must decide to target individuals with whom the plaintiffs communicate; (2) the government
must target those individuals with their powers under FISA versus some other surveillance authority; (3) the
Foreign Intelligence Surveillance Court judge must rule that the government satisfied the requirements of
FISA; (4) the government must actually intercept communications from these individuals; and (5) the
plaintiffs must actually be the ones communicating with the individuals when the communications are
intercepted. Additionally, even if the plaintiffs could establish that their harm was certainly impending, they
still cannot establish that the harm is fairly traceable to FISA, because, as noted under (2), there are other
surveillance options available that the government could have used.

3.

In sum, the plaintiffs do no more than speculate that the surveillance may occur in the future and that is not
sufficient to meet the standing standard. Finally, the plaintiffs argument that they have incurred costs due to

fear of future surveillance also fails for many of the same reasons. The plaintiffs cannot manufacture
standing by spending money in anticipation of a harm that the Court has already determined is not certainly
impending. The plaintiffs do not have standing. The court of appeals is reversed.
4.

Surveillance counts as a cognizable injury.

a.

5.

Fear of surveillance v. Actual surveillance

Is it fairly traceable?
a.

No. because it is a possible harm that may happen in the future.

b.

Standard: Certainly Impending = 100%

c.

If surveillance was happening, plaintiffs must suffer from:

i.

v.

Dissent (Breyer, J.)

1.

Based on affidavits the plaintiffs submitted, the plaintiffs harm in this case is not speculative, but actually
very highly likely. The plaintiffs represent, interview, and otherwise communicate with a number of
individuals that have been subject to surveillance in the past. Common sense tells us that these individuals
will be subject to surveillance under FISA in the future and that because the plaintiffs will continue to
communicate with them, the plaintiffs will also be subject to surveillance. The majoritys construction of the
word certainly is too rigid; in actuality it should be construed as reasonable probability or high
probability.
Pennell not sure we read this

a.
i.

Landlord cannot raise rent due to law. Landlord is injured by the statute = cognizable

ii.

Fairly traceable was satisfied in this case because the standard is differed. Standard: realistic danger

iii.

May show that National Security cases have their own standard.
Monsanto not sure we read this either

b.

2.

i.

Genetically engineered alfalfa now un-regulated. Monsanto wanted to grow genetically engineered
alfalfa. Neighbor said the de-regulation will now contaminate my organic alfalfa. Bees will
pollenate alfalfa (cross contamination) and wont be able to sell organic alfalfa.

ii.

Cognizable, yes. In the business of marketing alfalfa.

iii.

Fairly traceable, yes, because the farmer will have to spend money testing his alfalfa constantly for
contamination.

Allen/Duke Power/Clapper
a.

Allen
i.

When are injuries, that are relatively intangible, cognizable (personally experienced) for purposes
of standing?
1.

ii.
iii.

Intangible- psychological, emotional, aesthetic, ideological. Experienced through their mind. Amounts to
disagreement.

How direct must the causation chain be to meet the fairly traceable standard?
1.

More direct than it is in Allen.

Prudential Standing - pg 260

1.

Stands against general enforcement

2.

Prudential Standing doctrines (these MAY defeat standing)

a.

Remedy injury by invoking rights of another

b.

Generalized Grievance
i.

Everyone suffering at same time/not cognizable

ii.

Enough to deny standing

c.

Zone of Interests (Duke)

i.

b.

When suing, the injury sought to remedy, should fall into the zone of interest of the legal doctrine
that you are trying to remedy

Dukei.

There was no accident yet- no ripeness (unripe injury)

1.

Economic losses- cognizable? Yes. Special standing for National security cases? Maybe (plaintiff
caused the economic harms in Clapper so not fairly traceable) However, but for the surveillance,
the plaintiffs would not have had to spend money.

Timing Notion of Standing Doctrine

a.

Ripeness
i.

b.

2.

3.

Mootness
i.

Injury has disappeared/no longer inflicted

ii.

A situation in which a legal proceeding no longer affects the resolution of a legal issue due to loss
of controversy or because the issue has become an academic exercise.

iii.

I.e. Detainee being held on Navy Brigg on American soil (suspected of terrorism) arrested and not
charged. Put in custody. He challenged his confinement because it wasnt constitutional. After
reaching the SC, the Obama administration moved him into a federal jail and charged with a crime
but not held as an enemy combatant. His claim became moot, because they no longer claimed the
power to hold him any longer.

Article III Standing 3 elements

a.

First, the party must have suffered an injury-in-fact to an interest that is protected by a constitutional or
statutory provision. The injury must be concrete and particularized, as well as actual or imminent rather
than hypothetical.

b.

Second, the injury must be fairly traceable (causation) to, or caused by, the challenged action.

c.

Finally, third, the court must be able to redress the injury. This means that a favorable decision would
prevent harm to or compensate the plaintiff.

Statutory Standing
a.

Lujan
i.
ii.

Cognizable interest = desire to use or observe an animal species for purely aesthetic purposes.
No concrete or imminent plans
1.

iii.
iv.

7(a)(2) of the Endangered Species Act of 1973 (ESA), as amended 16 U.S.C. 1531 et seq., requires federal
agencies to consult with the Secretary of the Interior or Commerce before undertaking actions that might
jeopardize endangered or threatened species. The ESA provides that any person may initiate a civil suit on
her own behalf to enjoin anyone, including governmental entities, from violating the ESA. In 1978, the
Secretaries promulgated a joint regulation stating that the ESA consultation requirement extended to federal
actions taken in foreign nations. A new joint regulation limiting the geographic scope to the United States and
the high seas was proposed in 1983 and adopted in 1986. Organizations dedicated to the protection of wildlife
(plaintiffs) sued the Secretary of the Interior, Lujan (Secretary) (defendant), seeking a declaratory judgment
that the new regulations interpretation was wrong and an injunction requiring the Secretary to restore the
initial interpretation of the geographic scope of the statute. The plaintiffs argued they were injured because a
lack of consultation for governmental activities abroad increases the rate of extinction of endangered species.
The Secretary moved to dismiss based on the plaintiffs lack of standing. The district court granted the
motion, but the court of appeals reversed and remanded. The district court then granted the plaintiffs
summary judgment motion and issued the injunction. The appellate court affirmed. The United States
Supreme Court granted certiorari.

Issue
1.

vii.

Under Article III of the Constitution, a party does not have standing to litigate a generalized grievance against
the government in federal court if she suffered no personal injury other than the harm suffered by all citizens.

Facts
1.

vi.

Any person may sue to enjoin violations of ESA

Rule of Law
1.

v.

Even a plane ticket may have sufficed, but the interest is still there even if there are no ticket. However, the
tickets may have done the trick.

Congress creation of cognizable injuries:

1.

Does a party have standing to litigate a generalized grievance against the government in federal court if she
suffered no personal injury other than the harm suffered by all citizens?

Holding and Reasoning (Scalia, J.)

1.

Doctrine of justiciability that requires a claim be sufficiently ready for adjudication in order to be
heard by a court; a claim is only ripe if there is a present dispute that is not speculative in nature.

No. A plaintiff may not litigate a generalized complaint against the government based on harm suffered
equally by all citizens. Standing under Article III of the Constitution contains three elements. First, a plaintiff
must have suffered an actual injury. An injury in fact is an invasion of a legally protected interest which is

(a) concrete and particularizedand (b) actual or imminent. Second, the plaintiff must show a causal link
between the harm and the conduct at issue. This means that the injury is fairly traceable to the challenged
actionand not the result of the independent action of some third party. Third, it must be probable that a
favorable verdict will redress the harm. The burden is on the plaintiff to demonstrate these elements.
Allowing citizens to sue over an abstract right to have the Executive Branch follow statutory procedures
implicates the separation of powers doctrine. Here, the plaintiffs failed to show that threats to endangered
species cause them imminent injury. Their theories regarding an ecosystem, animal, or vocational nexus
justifying standing for individuals who want to study, see, or work with such animals are too speculative. The
plaintiffs also failed to show how a favorable outcome would redress their alleged injury. Conjecture
regarding redressability is insufficient to support standing. Additionally, the plaintiffs have not suffered a
procedural injury that justifies standing under the citizen-suit provision of the ESA. The plaintiffs are suing
over a generally available complaint about the government, not seeking to enforce a procedural requirement
that protects a separate, concrete interest. Accordingly, the decision of the court of appeals is reversed.
viii.

Concurrence (Kennedy, J.)

1.

ix.

Concurrence (Stevens, J.)

1.

x.

c.

Person with interest which may be affected by violation

Federal Election Commission v. Akins

i.
d.

Person aggrieved by violation (of the statute) may sue

Massachusetts v. EPA

i.

Any person has a right to sue

ii.

This case is a threat to Lujan

1.

Court points out that the state is the plaintiff and may have different interest that normal plaintiffs and may
stand for more.

Taxpayer or Citizen Standing

i.
b.

Taxpayer Standing is the assertion that the taxpayer is injured in the allocable share of tax
revenues expended in illegal activity. A cost to ones wallet is a tangible injury.
Flast v. Cohen (p. 301)

i.

Rule of Law
1.

ii.

10

The Secretary was not entitled to summary judgment, because the plaintiffs raised genuine issues of fact as to
injury and redressability. Additionally, the Courts general rejection of standing for plaintiffs with
procedural injuries is too broad and may interfere with or limit the constitutional authority of Congress to
allow citizen-suits in federal court. Congress could have simply issued a mandate barring executive actions
that harm endangered species. Instead, Congress legitimately gave the Executive Branch a measure of
discretion in implementing the law, subject to review for procedural violations by courts. Such review is one
reason Congress has generally been given the benefit of the doubt when delegating tasks to the Executive
Branch.

Friends of the Earth v. Laidlaw

i.

4.

The Courts finding that the plaintiffs failed to show an imminent and redressable injury is flawed.
Nonetheless, reversal of the decision of the court of appeals is warranted because it is not clear that Congress
meant for the consultation requirement of the ESA to apply to federal government activities in foreign
nations.

Dissent (Blackmun, J.)

1.

b.

Although the plaintiffs have not made a sufficient showing to establish standing based on one of their nexus
theories, a similar theory might support standing under different circumstances. Additionally, Congress has
the power to define injuries and articulate chains of causation that will give rise to a case or controversy
where none existed before. Congress has not done this with citizen-suit provision of the ESA, as the
provision does not specifically identify the injury it seeks to vindicate and relate the injury to the class of
persons entitled to sue.

Federal taxpayers may have standing to challenge expenditures of Congress if they show that the challenged
expenditure forms part of a federal spending program and is not just incidental to the program, and that the
constitutional provision under which the taxpayer claims a violation exists constitutes a specific limitation
on Congresss Article I, 8 taxing and spending powers.

Facts

1.

iii.

Issue
1.

iv.

Yes. Although the Court held in Frothingham v. Mellon, (1923) (p. 300), that federal taxpayers do not have
standing to challenge acts of Congress solely on the basis of their taxpayer status, in this case, an exception
must be made to Frothinghams holding for cases brought by taxpayers alleging a violation by Congress of
the Free Exercise or Establishment Clauses. A taxpayer asserts a sufficient personal interest in the litigation to
justify standing: (1) if the taxpayer alleges a violation of Congresss Article I, 8 taxing and spending powers;
and (2) if that taxpayer brings suit based on an aspect of the Constitution that is a specific limitation on
Congresss taxing and spending powers. The taxpayers in this case have satisfied both of these requirements,
as they challenged an exercise by Congress of its power under Article I, 8 to spend for the general welfare,
and the challenged program involves a significant expenditure of federal funds. Also, the taxpayers brought
suit alleging that the expenditures violate the Free Exercise and Establishment clauses of the Constitution;
both of which were designed to limit Congress ability to tax and spend for the purposes of promoting or
furthering religion. Hence the taxpayers have standing and the judgment of the lower court is reversed.

Hein v. Freedom from Religion Foundation, Inc . (presidential executive order to create faith base
initiatives) (p. 298)
i.

Rule of Law
1.

ii.

iii.

Do federal taxpayers have standing to challenge the United States governments funding of religious
programs when those programs are paid for by general executive branch appropriations?

Holding and Reasoning (Alito, J.)

1.

v.

Members of the Freedom from Religion Foundation (FFRF) (plaintiffs) brought suit in the United States
District Court for the Western District of Wisconsin against Hein and other federal officials (defendants)
tasked with administering President George W. Bushs Faith-Based and Community Initiatives program.
FFRF challenged the program, as taxpayers, on the grounds that the program inappropriately used general
funds appropriated by congress (taxpayer money not specific money) to support faith-based programs and
that speeches made by President Bush contained religious imagery. The district court granted FFRFs
motion to dismiss the case for lack of standing, but the court of appeals reversed on the ground that the
program constituted an inappropriate use of federal money in violation of the Establishment Clause of the
Constitution. The United States Supreme Court granted certiorari.

Issue
1.

iv.

Taxpayers do not have standing to challenge expenditures made by the executive branch of the federal
government solely based on their status as taxpayers.

Facts
1.

No. The source of the federal funding in this case differs from Flast v. Cohen, (1968), which created a
narrow exception for taxpayers to challenge federal expenditures when those expenditures were part of
Congresss taxing and spending power and were made in violation of the Free Exercise and Establishment
clauses of the Constitution. This case differs from Flast in that the federal money used to fund the Presidents
program is drawn entirely from the Treasury. The fact that FFRF asserted it had paid into this fund at some
point through general taxes does not constitute the same kind of specific, personal injury as was present when
Congress collected a tax for the specific purpose of promoting a religious program. FFRFs reading of Flast
is too general to fit within the narrow exception to the general rule that federal taxpayers do not have standing
to challenge congressional expenditures. FFRF should not be granted standing because the doctrine of
standing is designed to be applied only in narrow instances. The court of appeals decision is reversed.

Concurrence (Kennedy, J.)

1.

11

Do federal taxpayers have standing to challenge a congressional expenditure as a violation of the Free
Exercise and Establishment clauses of the Constitution solely because of their status as taxpayers?

Holding and Reasoning (Warren, C.J.)

1.

c.

Flast and six other federal taxpayers (plaintiffs) brought suit in the United States District Court for the
Southern District of New York to enjoin Cohen and other federal officers tasked with administering federal
funds (defendants) from spending those funds under the Elementary and Secondary Education Act of 1965.
The taxpayers brought suit solely based on their status as federal taxpayers, alleging that Congresss spending
of federal funds on instruction and materials in religious schools violated the Free Exercise and
Establishment Clauses of the United States Constitution. The lower court held that the taxpayers did not have
standing as federal taxpayers. The United States Supreme Court granted certiorari.

FFRF does not have standing to challenge the executive action. If FFRF were to be granted standing,
important constitutional provisions for the separation of powers would be violated. Further, a review of the

constitutionality of the executive program would be overstepping limits on judicial review and would violate
the separation of powers doctrine. For this reason, the court of appeals decision should be reversed.
vi.

Concurrence (Scalia, J.)

1.

vii.

Dissent (Souter, J.)

1.

d.

This case is indistinguishable from Flast, which should be applied to all federal expenditures or should be
overruled. Flast stands for the proposition that wallet injury never creates taxpayer standing, while creating
a narrow instance in which psychic injury, or taxpayer mental displeasure over the way federal money is
spent, creates standing. It is inconsistent with the Courts Article III standing jurisprudence to recognize
psychic injury in this way. Hence Flast should be overruled, and FFRF should be granted standing.
There is no reason, based on logic or precedent, for the plurality to hold that the taxpayers in Flast had
standing while denying standing to the taxpayers in the current case. There is no real distinction between
taxpayers challenging an action by the legislative branch as opposed to the executive branch. Taxpayer
money from the federal treasury can be clearly identified as funding religious programs. It is no more
burdensome to regulate legislative actions than executive actions. The majority's decision is an inappropriate
departure from Flast.

Spokeo, Inc. v. Robins (Supp. P. 14-16)

i.

Facts
1.

ii.

a.

Not clear that the failure to follow the procedures is the reason for the erroneous ruling.

b.

Erroneous information published

c.

Standing intangible but not concrete

Issue
1.

iii.

Spokeo, Inc. operated a website that provided information about individuals such as contact data, marital
status, age, occupation, and certain types of economic information. Thomas Robins sued Spokeo and claimed
that the company willfully violated the Fair Credit Reporting Act (FCRA) by publishing false information
about him on the website. However, Robins was unable to allege any actual or imminent harm, so the
district court granted Spokeos motion to dismiss for lack of subject-matter jurisdiction and Robins lack of
standing under Article III of the Constitution. Robins then filed an amended complaint in which he alleged
that he suffered actual harm to his employment prospects due to the website falsely claiming that he was
wealthy. The district court originally denied Spokeos motion to dismiss but later reconsidered its order and
dismissed the complaint for failure to state an injury in fact. Robins appealed and argued that the district court
could not reconsider its previous decision and that he had sufficiently alleged an injury in fact to qualify for
Article III standing. The U.S. Court of Appeals for the Ninth Circuit reversed and held that, although the
district court could reconsider its ruling, the allegation of a violation of a statutory right is sufficient injury to
qualify for standing.

Can Congress authorize a cause of action based on a violation of a federal statute and therefore confer Article
III standing on a plaintiff who has not suffered concrete harm?

Holding
1.

Because the U.S. Court of Appeals for the Ninth Circuit did not properly address whether all the elements of
standing were met, the Court vacated the case for reconsideration of whether the plaintiff alleged an injury in
fact that was concrete and particularized. Justice Samuel A. Alito, Jr. delivered the opinion for the 6-2
majority, which held that, in order to have standing under Article III, a plaintiff must show that he has
suffered an injury in fact that is fairly traceable to the defendants challenged conduct and is likely to be
redressed by a favorable decision in court. The injury-in-fact element is met when the plaintiff shows that he
suffered an invasion of a legally protected interest and that the injury was concrete and particularized as well
as actual or imminent. The Court held that the standing principles of Article III mean that a plaintiff cannot
bring a claim that alleges a bare procedural violation, but in determining whether the plaintiff proved that an
injury in fact existed, the lower court must examine the elements of injury-in-fact analysis. Because the
appellate court in this case failed to do so, the Court remanded the case for further consideration.
a.

iv.

12

The Court listed two factors that will help courts determine whether an intangible harm constitutes
injury in fact. These are:
i.

History: whether an intangible harm resembles traditional common-law grounds for suit.

ii.

Congressional action: whether Congress has elevated the intangible harm to the level of a statutory
right.

Concurrence

1.

v.

Dissent
1.

ii.

In his concurring opinion, Justice Clarence Thomas wrote that the standing doctrine applies to both private
citizens seeking to vindicate private rights as well as those who alleged violations of public rights. These
limitations stem from how the common-law courts traditionally handled the two different types of claims.
Therefore, Congress cannot create a new private right of action for the enforcement of public rights without
such suits being subject to standing doctrine analysis.
Justice Ruth Bader Ginsburg wrote a dissent in which she argued that it was not necessary to remand the case
because the evidence presented was sufficient to prove that the injury at issue was concrete, and the
particularity requirement does not need to be considered separately. In this case, the plaintiff was not alleging
a general harm but rather an injury that he suffered individually, so because it meets the concreteness
requirement, it does not need to meet a separate particularity one, and there is nothing for the lower court to
consider on remand. Justice Sonia Sotomayor joined in the dissent.

Justiciability and the Timing of Litigation

1.

Ripeness
a.

Case brought too soon if not certainly impending: All difficult ripeness and standing cases are injunction
cases.
i.

Poe v. Ullman
1.

Case dismissed because it was unripe. They were not threatened with prosecution yet.

2.

Relation to Griswold?
a.

3.

Four years before the Court struck down a Connecticut law banning the sale, dissemination, and use of
contraceptive devices in the landmark case of Griswold v Connecticut, the Court considered a
declaratory judgment action seeking to enjoin future enforcement of the law on the grounds that it
violated the Constitution (Poe v. Ullman (1961)). On a 5 to 4 vote, the Court dismissed the action for
lack of a case or controversy. The Court noted that no prosecution under the challenged law was
pending, that only one prosecution had ever been brought under the law, and that contraceptives were
openly sold in Connecticut drugstores. Writing for the Court, Justice Frankfurter concluded that the
plaintiffs failed to show the real threat of prosecution necessary to have their case heard.

Any ripeness problem can be reframed as a standing problem and vice versa. How do you define the injury?
a.

2.

These doctrines are overlapping ways to see the same issue.

Mootness
a.

Case brought too late or on time when filed but no longer need judicial relief
i.

Can become moot easily:

1.

Through the passage of time: because the plaintiff is no longer injured. Transitory mootness relates to injuries
that only exist for a finite period of time. So, since they are no longer impending they would be moot.

2.

Transitory Mootness Exceptions

a.

Passage of time
i.

b.

Capable of repetition yet evading review as to that plaintiff bringing the suit.
Class actions

i.

CERTIFIED

ii.

Wrongful denial of cert

iii.
c.

Genesis Healthcare Corp v. Symczyk not sure we read this

b.
i.

ii.
iii.
B.

Motion
Change in Policy

Nurse (respondent) brought FLSA claim on behalf of herself and similarly situated employees.
Petitioner answered complaint with offer of unpaid wages and related costs/fees. Respondent did
not respond to offer. Petitioner filed a motion to dismiss for lack of SMJ. Nurse had no more stake
in outcome because she was offered relief.
A claim for damages cannot evade review, unlike claims for injunctive relief.
Held for Petitioner. Respondents individual claim became moot following the Rule 68 offer of
judgment.

Implied Federal Court Remedies for Constitutional Violations by Federal Officials and Agencies
i.

13

The Constitution as a Sword

1.

Bivens Remedies
a.

What proposition of law does Bivens stand for?

i.

Naked Constitutional Claim against federal defendants

1.

NCC- No explicit statutory authorization 1983- does not apply

a.

b.

What case can this case be compared to?

i.

2.

Bivens stands for the proposition that the lower federal courts have the power to grant damages against
federal officials on Naked Constitutional Claims to enforce the 4 th Amendment.
i.
ii.

Naked Constitutional Claim = no other right to sue except under the constitution itself.
Bivens had no claim authorizing statute

Bivens v. Six Unknown Named Agents of FBN (applies to the 4 th Amendment )

a.

Main point of Bivens

i.

b.

Constitutional authorization of a tort-claim in federal court (like McKesson but more generally a
Naked Constitutional Claim)
Absence of Affirmative Action by Congress

i.
c.

Another remedy equally effective in the eyes of congress

Rule of Law

i.
d.

Violation of the 4 t h Amendment by a federal agent gives rise to a cause of action for damages
resulting from the violation.
Facts

i.

e.

Agents of the Federal Bureau of Narcotics (defendant) entered Bivens (plaintiff) apartment,
searched it, and arrested him without a warrant. The search and arrest were conducted in front of
Bivens wife and children and the agents threatened to arrest his whole family. Bivens brought suit
against the agents for violation of his 4 t h Amendment rights. The agents argued that Bivens right
to privacy is based in state law and thus a claim should be brought in state court. The district
court dismissed the complaint for failure to state a cause of action and the court of appeals
affirmed. Bivens appealed.
Issue

i.
f.

Does violation of the 4 t h Amendment by a federal agent give rise to a cause of action for damages
resulting from the violation?
Holding and Reasoning (Brennan, J.)

i.

g.

Yes. Violation of the 4 t h Amendment by a federal agent gives rise to a cause of action for damages
resulting from the violation. The agents, by arguing that the violation in question is based in state
law, improperly equate interactions between a federal agent and a private individual with that of
two private individuals. A federal agent acting with the power of the government behind him
possesses a far greater capacity for harm than a private trespasser. The 4 t h Amendment thus
provides greater protection against privacy rights violations by federal agents than state laws do
for similar offenses committed by private individuals. Bivenss personal liberties have been
violated and damages should be the remedy. The lower courts are reversed and the case is
remanded.
Concurrence (Harlan, J.)

i.

14

McKesson : Bivens as State Courts: Federal Courts

Bivens Hypothesis:
a.

3.

Therefore, 4th Amendment violation has within it an implied right to sue.

As the majority states, Bivenss federally protected interest in privacy from unreasonable searches
has been violated. Although the legislature has not specifically provided for a remedy in this
situation, it is the place of the Court to step in and provide a remedy where it is necessary and
appropriate to do so according to the intent behind the constitutional interest at stake. Here, the
Court properly determines that Bivenss 4 t h Amendment interests were violated and damages are
necessary and appropriate to vindicate those interests. Because the government is immune to suit
as a whole, liability properly falls on the agents. Additionally, in response to the dissent, the
chance of frivolous claims coming about due to this holding is a necessary byproduct of justice
and there are other ways to guard against such claims. It is not appropriate for the Court to

arbitrarily determine that because of scarce judicial resources one interest is less important than
another and thus should not warrant recovery for its violation.
h.

Dissent (Burger, J.)

i.

i.

Dissent (Black, J.)

i.

4.

Congress has never created the cause of action that the majority creates for Bivens in its holding.
It is therefore inappropriate for the Court to do so. In addition, even if the Court did have the
power to create a cause of action in this case, it should not do so because of the potentially severe
increase in frivolous lawsuits against law enforcement officials that will surely arise as a result of
the majoritys holding.

Extension of Bivens
a.

Davis v. Passman
i.

b.

Specific exclusion
Carlson v. Green

i.
ii.
iii.
c.

High point of Bivens

8 t h amendment cruel and unusual punishment case
There was a remedy provided by Congress in this case- statutory remedy. But Bivens did not
disappear. They intended the statute to operate parallel to Bivens .
Bush v. Lucas

i.
5.

The remedy the majority allows for today is not provided for in the Constitution or by Congress
and is therefore inappropriate.

Denied Bivens remedy- 1 s t amendment case. Federal employee fired. No discussion of Bivens .

Schweiker v. Chilicky (1988)

a.

Facts: Respondents are three individual whose disability benefits under Title II were terminated pursuant to
the CDR program in 1981 and 1982. Harris and Adelerte appealed these determinations through
administrative process, were restored to disabled statue, and were awarded full retroactive benefits. Chilicky
filed a new application for benefits about a year and a half after his benefits were stopped. His application
was granted, and he was awarded one years retroactive benefits; his application for the restoration of the
other 6 months benefits is apparently still pending. They filed this suit alleging that petitioners had violated
the respondents due process rights. Cert was granted.

b.

Issue: whether a Bivens remedy should be implied for alleged due process violations in the denial of social
security disability benefits?

c.

Holding: No.
i.
ii.

iii.

d.

Congress responded to the problem and addressed it, but there were people who were really
injured.
Court says this is not like the cases where there wasnt a remedy. Congress created a process and
at the end of the process you get all your back pay.
Factors:
1.

Congress already specifies remedies it wants

2.

Like in Bush v. Lucas, Chilicky got his back pay

3.

When Congress provides for a remedy, we have to give deference to their decision

4.

Congress also does this for military misconduct

Bivens Remedy/Action:
i.
ii.

iii.

A Bivens action is a claim against federal officials, sued in their individual capacities, for a
violation of a persons constitutional rights.
To state a claim under Bivens , a plaintiff must allege that he:
1.

Was deprived of a constitutional right

2.

By a federal agent

3.

Acting under color of federal authority.

A Bivens action is the federal counterpart of a civil-rights action brought under 42 U.S.C. 1983
1.

15

So, if you had your constitutional rights violated by federal agents, bring a Bivens action. If you had your
constitutional rights violated by state or local police, bring a 1983 action.

e.
ii.

Dissent distinguishes Bush v. Lucas . In Bush , the plaintiff largely got compensated for harm. Here, plaintiff
didnt get remotely compensated for harm (emotional anguish by violation of Constitutional rights).

The Impact of Statutory and State Law (Initial Expansion)

1.

Davis v. Passman
Congressional aide fired based on sex. Court implied 5 th Amendment equal protection remedy.

a.
2.

Carlson v. Green
a.

Suit against prison officers under 8 th Amendment for death of prisoner. Implies remedy under 8 th Amendment.

b.

Holds that FTCA (federal tort claims act) alternative remedy is not sufficient as dont get:
i.
ii.

iii.

Two cases under which Bivens remedy wont be implied (Carlson ):

a.

Special factors counseling hesitation (Chappell, Stanley )

i.

b.

2.

3.

4.

5.

6.

e.g., concern for the military.

Congress has provided an alternative remedy as a substitute. Need only be adequate ( Bush v. Lucas ),
not equal to Bivens .

i.

Thus, need not be able to get damages.

Chappell v. Wallace
a.

Servicemen sue based on racial discrimination under 5 th s due process (backwards incorp equal protection).

b.

Court again declines to create Const. remedy, implying that intra-military process is enough, even though
military justice system doesnt provide any damages at all.

c.

Court finds concern for military is special factor

Bush v. Lucas
a.

Facts: federal engineer gets demoted based on speech, claims 1 st Amendment violation. Civil Service remedy
available, but only gives reinstatement and back pay.

b.

Held: alternative remedy is adequate

Schweiler v. Chiliky
a.

Facts: denial of Social Security benefits, claim due process violation. SSA provides back benefits, but not
other damages.

b.

Held: Congress has created alternative remedy that is adequate.

Correctional Service Corp v. Malesko

a.

The Supreme court declined to extend Bivens to claims against a private corporation operating a halfway
house under contract with the Federal Bureau of Prisons.

b.

Inmate with heart condition declined to use elevator and suffered a heart attack while climbing the stairs.

c.

Did not seek action against an individual officer, nor is he a plaintiff in search of a remedy.

Wilkie v. Robbins
a.

Robbins was a Wyoming landowner who claims that Wilkie and other employees of the federal bureau of Land
Management had unconstitutionally harassed and persecuted him for refusing to give the govternment an
easement on his land.

b.

Is a Bivens Remedy available?

c.

The court held there was no Bivens remedy available.

d.

Standard: 2 parts
i.

Is there another remedy from Congress?

1.

Yes, no Bivens

2.

No, Bivens is discretionary- made available by courts depending on their assessments on the value of a
Bivens remedy as a deterrence.

Political Question Constraints on the Remedial Power of the Federal Courts

1.

Political Question Doctrine History

a.

Marbury v. Madison
i.

16

Jury trial

Decisions Denying Bivens Actions

1.

iv.

Punitive damages;

The political question doctrine asserts that some issues are appropriate for resolution only by the
political branches of the government rather than courts.

ii.

Questions, in their nature political or which are, by the constitution and laws, submitted to the
executive, can NEVER be made in this court Marbury
1.

2.

An issue not proper for adjudication by a court because it should be resolved by the political branches of
government.

Political Question
a.

Luther v. Borden

b.

Miller
i.

c.

Consideration for appropriateness and lack of satisfactory criteria

Baker v. Carr

i.

Two strands of political question

1.

Textual commitment

2.

Prudential
a.

Rule of Law
i.

b.

A challenge to malapportionment of state legislatures brought under the Equal Protection Clause is
not a political question and is thus justiciable.
Facts

i.

c.

Baker (plaintiff) was a Republican living in Shelby County, Tennessee. The Tennessee Constitution
required that legislative districts be redrawn every ten years to adjust for changes in population.
Baker brought suit against Carr (defendant), Secretary of State in Tennessee, in his official capacity
alleging that because Tennessee had not actually redistricted since 1901, the urban Shelby County
district had ten times as many residents as did the more rural districts. Thus, Baker argued that rural
votes counted more than urban votes, and that he was thus denied equal protection of the laws. The
State of Tennessee argued that legislative districting issues were not judicial questions but political
questions, and were thus not capable of being decided by the courts based on the Constitutions
prohibition on the Courts deciding political questions.
Holding and Reasoning (Brennan, J.)

i.

d.

*Powell v. McCormack
i.

Rule of Law
1.

ii.

A challenge to restrictions on congressional membership set by the United States House of Representatives is
justiciable and not a political question.

Facts
1.

17

No. Under Luther v. Borden, (1849), challenges to the malapportionment of state legislatures
brought under the Guaranty Clause of the Constitution are inappropriate political questions. Unlike
Luther, the case at bar is brought under the Equal Protection Clause There is no question the Court
is meant to adjudicate plaintiffs rights to equal protection under the laws due to its precedent. For
an issue to be a non-justiciable political question, one of six tests (listed in descending order of
importance and certainty) must be satisfied: (1) a textually demonstrable constitutional
commitment of that issue to another political branch; (2) a lack of judicially discoverable and
manageable standards for resolving the issue; (3) an impossibility of deciding the issue without
making an initial policy determination of a kind not suitable for judicial discretion; (4) a lack of
respect for the other branches of government in undertaking independent resolution of the case; (5)
an unusual need for unquestioning adherence to a political decision already made; or (6) the
potential for embarrassment for differing pronouncements of the issue by different branches of
government. In the present case, there is no textually-demonstrable commitment of Equal
Protection issues to other branches of government. There are certain judicial standards already in
place for adjudicating such claims, and because Baker is an individual person suing a state
government, there is no separation of powers concerns implicated. This claim does not fall under
one of the six tests of a political question and therefore the claim is justiciable. The case is
remanded to the district court for consideration of the merits.

Adam Clayton Powell, Jr. (plaintiff) was elected to serve the 18th District of New York in the United States
House of Representatives in the 90th Congress. However, pursuant to a House Resolution, Powell was
prevented from taking his seat. The resolution was passed in response to the results of an investigation in the
89th Congress which determined that Powell as Chairman of the Committee on Education and Labor
deceived the Congress as to his travel expenses and authorized inappropriate salary payments to his wife.

When Powell was prevented from taking his seat, he and several of his constituents filed suit in federal
district court against McCormack (defendant) and five other members of Congress, alleging that the House
could only exclude Powell if he failed to meet the standing requirements of age, citizenship, and residence
claimed in Article I, 2 of the Constitution (requirements which the House found Powell met). The United
States Supreme Court granted certiorari.
iii.

Issue
1.

iv.

Is a challenge to restrictions on Congressional membership set by the United States House of Representatives
a non-justiciable political question?

Holding and Reasoning (Warren, C.J.)

1. No. The first test for finding a non-justiciable political question outlined in Baker v. Carr, (1962), is whether there is a textually-demonstrable
constitutional commitment of the issue to another political branch. Article I, 5 of the Constitution states that the House of Representatives may judge
the qualifications of its own members. Historically this has encompassed only the Houses right under Article I, 2 to exclude from membership
individuals who did not meet certain standing requirements of age, citizenship, and residence. This is the only textually demonstrable commitment of
exclusion powers granted solely to the House. English history, the debates at the Constitutional Convention, and subsequent practices suggest the
framers intent was not to give exclusion powers to the House beyond those specifically enumerated in Article I, 2. Thus, because the House excluded
Powell for reasons not invoking its specifically enumerated rights to do so, the Court can properly adjudicate the constitutionality of the Houses
actions. Thus, a challenge to restrictions on congressional membership set by the House is not a non-justiciable political question. The case is remanded
for consideration.
2.

If A POWER IS TEXTUALLY COMMITED

a.

No judicial check/review

b.

Are there any checks on Congress?

i.

v.

1.

vi.

Impeachment case- senate decides the scope and limits of the meaning of trial. The senate also
tries the case. (power from the constitution)

ii.

Facts: House impeached Nixon. Impeachment went to the Senate. The Senate shall have sole
power to try all impeachments. The Senate delegated the evidence gathering portion of the trial
to a smaller committee. The committee took testimony and heard arguments- functionally as a
trial. The results were presented to the Senate and the Senate as a whole, voted the impeachment.
Nixon said he wasnt tried by the Senate, but rather a committee. Wanted to set aside the
conviction.

iii.

Issue: Is the power to decide what a trial is, textually committed to the Senate? Or is their judicial
review?

iv.

Held: is it up to the Senate. Power to try includes the power to decide what a trial is, is textually
committed to the Senate (authorizing language). Must be 2/3 vote to convict (limiting language).

v.

Almost all the powers could be argued as textually committed, but some powers are different.

Political Questions and Constitutional Remedies

a.

*Stanley (181-182)
i.

ii.

Stanley, a sergeant in the army, volunteered to participate in a program to test protective clothing
but was secretly administered a dose of LSD. He alleged he suffered adverse affects including
hostility toward his wife and kids.
Stanley brought a Bivens action which was rejected by the S.C. No Bivens remedy is available
for injuries that arise out of or are in the course of activity incident to service. (182)
1.

18

As Powell had already been re-seated in the 91st Congress by the time of the hearing in this case, the issue as
to whether the House acted constitutionally in excluding him from the 90th Congress is moot.

*Nixon v. United States

i.

3.

Additional qualifications of congressional membership beyond those listed in Article I, 2 can only be added
by constitutional amendment. Thus, even for removal based on a lack of Article I, 2 qualifications, the
House must elect to do so by a 2/3 majority vote. Whether the House complied with this constitutional
requirement is a justiciable question.

Dissent (Stewart, J.)

1.

e.

Political process will serve as a check no re-election

Concurrence (Douglas, J.)

Congressional Power: Congress hasnt authorized a remedy

v.

iii.

The special factor that counsels hesitation is not the fact that Congress has chosen to afford
some manner of relief in the particular case, but the fact that congressionally uninvited intrusion
into military affairs by the judiciary is appropriate. (182)

iv.

Justice OConnor dissented saying she agreed that Bivens remedies were generally unavailable to
service personnel, but though the present case involved conduct so far beyond the bounds of
human decency that as a matter of law, it simply cannot be considered a part of a military
mission. (182)

The Demise of Bivens

1.

Minneci v. Pollard
a.

Prison condition case

i.
ii.

No Bivens remedy
State law tort remedy was available
1.

C.

Afforded deterrence and compensation

Congressional Power to Bar Federal (and State) Court Jurisdiction over Constitutional Claims
i.

Introduction: Traditional View

1.

2.

Article III
a.

1 the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts
as Congress may from time to time ordain and establish.

b.

2 the judicial power shall extend to all cases, in law and equity, arising under this Constitution pg 435

Writ of Habeas Corpus

a.

A legal action by which a petitioner or otherwise detained individual can seek release from unlawful
detainment.

The Lower Federal Courts

3.

4.

Sheldon v. Sill (1850) (plenary power) (page 445)

a.

Facts: Sheldon, a Michigan resident, owed money to Hastings, also a Michigan resident, on a bond and a
mortgage. Hastings assigned the debt owed to him to Sill, a New York resident. Pursuant to this assignment,
Sill sued Sheldon in federal court to recover the sum due. Sheldon moved to dismiss because under the
Judiciary Act of 1789 federal courts could not hear cases when diversity was created by an assignment. Sill
contended that because Article III authorizes diversity jurisdiction and does not contain a limitation for
diversity gained by assignment, this section of the Judiciary Act was unconstitutional

b.

HELD: The Supreme Court upheld the Judiciary Acts restriction on diversity jurisdiction. The Court
declared: Congress may withhold from any court of its creation jurisdiction of any of the enumerated
controversies. Courts created by statute can have no jurisdiction, but such as the statute confers.

c.

Because Congress has the discretion to create lower federal courts, Congress also possess authority to
determine their jurisdiction.

Webster v. Doe (1988) (Clear Statement Rule)(p. 446)

a.

Rule of Law
i.

b.

Facts
i.

c.

19

When Congress intends to preclude review of constitutional claims, its intent to do so must be
clear.
John Doe (plaintiff) began working for the Central Intelligence Agency (CIA) in 1973. Over the
course of his time at the CIA, Doe received excellent reviews and a promotion. In 1982, he
informed a CIA security officer that he was gay. The Director of the CIA (Director) (defendant)
then fired Doe on the ground that his homosexuality posed a threat to security. Doe sued the
Director, arguing that the agencys decision to fire him violated the Administrative Procedure Act
(APA) and deprived him of his constitutionally protected rights to privacy, liberty, and privacy,
procedural due process, and equal protection. In response to Does suit, the Director argued that
102(c) of the National Security Act (NSA) precludes judicial review of his dismissal decisions.
The court of appeals found that Does termination was reviewable. The United States Supreme
Court granted certiorari.
Issue

i.

d.

Holding and Reasoning (Rehnquist, C.J.)

i.

e.

Yes. Under 701(a)(2) of the APA, courts may not review an agency decision where the agency
action is committed to agency discretion by law. Under this provision, an agency decision is
unreviewable where the statute is drawn in such a manner that a court would have no meaningful
standard against which to judge the agencys exercise of discretion. Additionally, when Congress
intends to preclude review of constitutional claims, its intent to do so must be clear. Here, the
provision of the language and structure of the NSA indicate that Congress meant the Director to
have discretion over the termination of individual employees. As such, 701(a)(2) of the APA
precludes judicial review of the Directors termination decisions under the APA. Yet, it is not clear
from 102(c) of the NSA that Congress intended to preclude review of colorable constitutional
claims arising out of the Directors actions under that provision. Accordingly, the district court
may review a constitutional claim based on an individual discharge.
Dissent (Scalia, J.)

i.

5.

Can constitutional claims arising out an agencys action be reviewable where the statute affording
the agency authority to engage in that action does not clearly preclude the review of constitutional
claims?

The Directors termination decision is unreviewable under 701(a)(2) of the APA. This provisions
language regarding commit[ment] to agency discretion by law includes, but is not limited to,
situations in which there is no law to apply. In excepting the Directors termination decisions
from review, the APA does not authorize the Director to act unconstitutionally, but it does
preclude review of his decision.

Boumediene v. Bush (2008)

a.

Facts: Boumediene was one of the several aliens captured at various battlefields all over the world, from
Afghanistan to Bosnia or Gambia, who were then held at Guantanamo Bay. None of them was a citizen of a
nation at war with the US. They were separately examined before a combat status review tribunal (CSRT),
which are military courts set up in accordance with the decision in Rasul , to decide whether they could be
held in lawful custody. Each was decided by the board to be an enemy combatant, and sought habeas corpus
in the District Court for the District of Columbia.

b.

Issue: do aliens, who are enemy combatants, have the right to habeas corpus under the constitution, and do
the alternative procedures substituted by Congress not act as sufficient or effective options?

c.

Holding: Yes, they have the right to habeas corpus and alternative procedures were not sufficient.
i.
ii.

Is the Military Commission Act constitutional or unconstitutional? Unconstitutional. There is a

limit to Congresss power.
7 possible reasons why Congress could do this?
1.

Congress could not pass writ unless it was wartime

a.

iii.

20

Justifications:
i.

Where theyre being held (doesnt extend to outside the US)

ii.

Not citizens

iii.

Still had adequate procedures

The court starts with the history of writ and how it is essential. Whether it could extend outside of
US? They look at the history. Evidence was inconclusive. Cases where territory extended or where
kings agents went.
1.

Conclusion: Cuba isnt really outside the US because it has been a US territory for so long and US has
complete jurisdiction and control over the land. The government says legally Guantanamo Bay still belongs
to Cuba and president agrees (political question supreme court should not change this). The court looks at
de facto sovereignty. As a practical matter the US has sovereignty. Article 9 has full effect in GTMO so
petitioners have a right to habeas corpus.

2.

DTA found to be inadequate inconsistent with habeas corpus.

a.

No adversarial proceeding

b.

No right to lawyer

c.

Couldnt challenge evidence

d.

Courts lacked authority to actually release

e.

Could introduce evidence or rebut these findings

3.
iv.

v.
vi.
ii.

2 questions:
1.

(1) Were they being held in sovereign US territory? Yes, GTMO is a de facto US territory

2.

(2) Were the procedures set up in DTA the equivalent of Habeas? NO.

You may not need habeas as soon as someone is detained because of security reasons.
Court held that the denial of access to habeas corpus to those held as enemy combatants in GTMO
was an impermissible suspension of the writ of habeas corpus.

The Supreme Court

1.

Article III, 2
a.

2.

3.

the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and
under such regulations as the Congress shall make.

Possible Theories
a.

Congress can make whatever exceptions it likes

b.

Congress has the ability to make whatever exceptions it likes as long as the restriction itself does not violate
other constitutional provisions. (e.g., the pardon power (Klein ?); equal protection)

c.

Congress has the ability to make whatever exceptions it likes as long as it does not dictate the rules of
decision and thus dictate the substantive outcome for the court ( Klein ).

Ex Parte McCardle (440)

a.

Facts: McCardle was a Mississippi newspaper editor who was in military custody under the post-civil war
reconstruction Acts. He brought a habeas corpus proceeding under an 1867 Act of Congress authorizing
federal courts to grant habeas corpus to anyone restrained in violation of the U.S. Constitution. The Act also
permitted appeals to the Supreme Court. The lower court denied McCardles claim that the Reconstruction
Acts were beyond the constitutional power of Congress. McCardle appealed to the Supreme Court. Congress
then passed an Act that repealed the part of the 1867 Act allowing for appeal to the Supreme Court.

b.

Issue: Does Congress have the power to take away jurisdiction previously granted to the Supreme Court?

c.

Holding: Yes. The jurisdiction of the Supreme Court is conferred from the Constitution, which confers
jurisdiction with such exceptions and under such regulations as Congress shall make. Due to constitutional
authorization, the repeal of jurisdiction is valid.

d.

Congress had two different ways to grant habeas corpus

i.
ii.

e.

iii.

Petitioners need to be given adequate habeas corpus provisions. Court says that after a reasonable amount of
time, prisoners need to be given adequate rights.

(1) 1789 anyone held in federal custody

(2) 1867 extending to state custody (Congress is concerned southern states are holding people
against their constitutional rights)
McCardle sought habeas under 1867 because he wanted to challenge the Reconstruction Act that he was being
held under. The Supreme Court declared that this was a dangerous case because they may have to strike down
many provisions and chaos would erupt, so Congress just took away the Supreme Courts appeals rights
regarding habeas corpus.

Challenges to the Traditional View

State Immunity from Suit Under the 11th (and 10th) Amendment(s)

D.
i.

The Origins of the 11th Amendment Immunity and the Ex Parte Young Fiction
1.

The 11th Amendment:

a.

2.

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any foreign state.

Question:
a.

3.

When can a state be sued in federal court?

Chisholm v. Georgia
a.

Facts: In the aftermath of the revolution, Georgia stiffed its creditors. The executor of a South Carolina
merchant sued to recover for supplies furnished under contract with the state of Georgia.

b.

Held: That Georgia could be sued despite its claim of Sovereign Immunity. Chisholm was awarded damages
upsetting all states in debt after the war.
i.

21

11 t h Amendment passed due to the uproar of states. 11 t h Amendment meant to overrule Chisholm.

c.

Problem with Chisholm :

i.

d.
i.
ii.
e.

1.

Therefore, the 11th Amendment does not enshrine sovereign immunity as a constitutional concept.

2.

It only prohibits diversity suits against states, thus restricting the state-citizen diversity jurisdiction to suits by
states.

3.

Does not affect suits arising under federal law.

Issue: whether a state can be sued in a circuit court of the US by one of its own citizens upon a
suggestion that the case is one that arises under the Constitution or laws of the United States?

b.

Holding: No. Determines that the 11 th Amendment prohibits a citizen of a U.S. State to sue that state in federal
court.

c.

The 11th Amendment as it was adopted does not say no to state v. citizens of that state cases. They look at the
history. The federalist papers said that it is inherent in the sovereignty that states cannot be sued without
consent. The Virginia Convention these kinds of controversies were objected to. The history concludes that
these types of cases were never in the federal courts subject matter jurisdiction. Article 3, 2 was giving
authority to hear a case but only when the state gives consent. Could hear the case if state courts could and
state courts could not, so its not permissible.

Ex Parte Young (1908)

a.

Minnesota adopted a law limiting railroad rates. The railroads and their shareholders believed that such
regulations were unconstitutional and sought to enjoin their enforcement. The railroads and shareholders
could have violated the law and raised their constitutional challenge as a defense to prosecution. The statute
however, had severe penalties a $2,500 fine for each violation and imprisonment of the railroads agents for
as long as five years. Thus, shareholders in the Northern Pacific Railway instead instituted an action in
federal court against the company and state officials responsible for enforcing the law to prevent the
compliance with the limits on railroad rates. Specifically, the plaintiffs sought an injunction against the
attorney general of Minnesota, Edward T. Young, to prevent him from beginning any proceeding to enforce
this challenged legislation. While the lawsuit was pending, the federal district court issued a preliminary
order enjoining Young from enforcing the law. Young, however, ignored the courts order and immediately filed
a mandamus action against the railroad in state court to compel its compliance with the state law. Young then
was cited by the federal court for contempt for disregarding the order. He was informed that he would be held
in federal custody until such time as he dismissed the state action he had initiated against the railroads.
Young petitioned for habeas corpus to the U.S. Supreme Court, claiming that the injunction violated the 11 th
Amendment.

b.

The Supreme Court Ruled against Young, holding that the 11 th Amendment does not bar suits against state
officers to enjoin violations of federal law.

c.

Injunctions are permissible under the 11 th Amendment.

The Distinction Between Perspective and Retroactive Relief after Young

1.

Edelman v. Jordan (1974)

a.

22

This interpretation reads the amendment as a restriction on the federal courts only when
jurisdiction is based on diversity of citizenship.

Facts: Hans (a citizen of Louisiana) owned bonds issued by the state and was concerned that a recent change
to the state Constitution would render the bonds invalid. Hans filed a suit against the state in the U.S. District
Court asserting that Louisiana was impairing the obligations of a contract, which was forbidden by Article 1,
10 of the US Constitution.
i.

ii.

This interpretation treats the 11 t h Amendment as re-establishing the state sovereign immunity
implicitly recognized by Article III.

Hans v. Louisiana (1890) Chisholm again? (Robust Immunity from Suit)

a.

5.

Conflicts with supremacy clause

Diversity Interpretation pg 1037

i.

4.

Art. III power construed

Immunity Interpretation pg 1031

Facts: Plaintiffs alleged that program monies had been administered in a way that violated both federal law
and the 14 th Amendment. Specifically, they claimed that Illinois administrators were applying their own
guidelines, which ignored federally, mandated limits, thereby not getting aid to applicants fast enough. They
sought relief including a positive injunction to require the state to award him and others in his position the
aid they had missed because of the lateness in processing the applications.

b.

Issue: whether a federal court can require a state to restore money wrongfully withheld from citizens by the
state?

c.

Holding: No.

d.

How far can we take Ex Parte Young ? Here, Plaintiff sues seeking injunction ordering the state to compensate
them for past payments hey did not receive.

e.

The 11th Amendment barred payment of retroactive payments from the Treasury.
i.

f.

Can they order to pay going forward (prospective)? Yes, because it is complying with some federal
right (even though it will have significant financial consequences).
Consent issue this is a federal program, so by joining (participating) they are consenting to the suit if they
do not comply

i.
2.

iii.

Ford Motor Co. v. Department of Treasury (naked 14 th Amendment claims) (p. 1053)
a.

14 th Amendment changed the states

b.

Did not offer immunity against suits against treasuries.

c.

14 th Amendment claim cannot go against 11 th Amendment bar.

d.

11th Amendment immunity protects states from suits under Constitutional unless Congress has passed an
override statute.

Local Governments and the 11th Amendment

1.

iv.

Court says participation isnt enough. Congress needs to explicitly allow for suits.

Luning (1058)

Congress Limited Power to Override the 11th Amendment Immunity

1.

Under Article I of the Constitution

a.

Seminole Tribe
i.

Rule of Law
1.

ii.

Facts
1.

iii.

May Congress validly repeal states sovereign immunity through an exercise of power not derived from 5 of
the 14th Amendment?

Holding and Reasoning (Rehnquist, C.J.)

1.

23

In 1988, Congress passed the Indian Gaming Regulatory Act (IGRA) providing that Native American tribes
could only conduct certain gaming activities pursuant to a valid compact between the tribe and the state in
which the gaming activities were located. IGRA imposes on states a duty to negotiate with tribes in good
faith for the purpose of forming a compact and authorizes tribes to bring suit in federal court against states to
compel performance of that duty. In 1991, the Seminole Tribe of Florida (plaintiff) brought suit against the
State of Florida and its Governor (defendants) in district court alleging that Florida refused to enter into any
negotiations with the tribe for the establishment of gaming activities and therefore violated IGRA. Florida
moved to dismiss the complaint on the grounds that IGRA violated Floridas sovereign immunity. The district
court denied Floridas motion to dismiss, but the Eleventh Circuit Court of Appeals reversed. The Seminole
Tribe of Florida appealed to the United States Supreme Court.

Issue
1.

iv.

Congress may not abrogate states sovereign immunity protected by the 11th Amendment unless through an
exercise of power derived from 5 of the Fourteenth Amendment.

No. In order to determine whether Congress has repealed states sovereign immunity, two questions must be
asked: (1) whether Congress unequivocally expressed its intent to repeal such immunity and (2) whether
Congress acted pursuant to a valid exercise of power. Here, although Congress clearly stated in IGRA its
intention to repeal states sovereign immunity from suit. However, Congress did not act pursuant to a valid
exercise of power. In previous cases, the Court has found authority to abrogate under only two provisions of
the Constitution. In Fitzpatrick v. Bitzer, (1976), it was held that Congress may abrogate state sovereign
immunity through regulations made under its powers in 5 of the 14th Amendment. Additionally, under the
Courts decision in Pennsylvania v. Union Gas Co., (1989), Congress may abrogate state sovereign
immunity through regulations passed under the Interstate Commerce Clause. However, the Union Gas Co.
decision had little constitutional support at the time it was made, presented significant difficulties with its
application in lower courts, and is not based on established precedent. Hence, Union Gas Co. is hereby
overruled. Congress may not abrogate states sovereign immunity protected by the 11th Amendment unless
through an exercise of power derived from 5 of the 14th Amendment. Because Congress did not pass IGRA

as an exercise of its 14th Amendment powers, IGRA is an unconstitutional abrogation of states sovereign
immunity protected by the 11th Amendment. The decision of the court of appeals is reversed.
v.

Dissent (Stevens, J.)

1.

vi.

Dissent (Souter, J.)

1.

v.

The 11th Amendment bars only citizen-state diversity jurisdiction (i.e. a suit between a state and a noncitizen
of that state). It does not bar federal-question jurisdiction in cases in which the state is a party to the suit. In
Hans v. Louisiana, (1890), the Court held (wrongly) that a state could plead sovereign immunity against a
noncitizen suing under federal-question jurisdiction. The Hans court misread the 11th Amendment, and the
majority in the instant case constitutionalizes that misreading in its opinion.

2.

Under the 14 th Amendment

3.

Fitzpatrick v. Bitzer (p. 1063)

a.

Request for relief in federal court

b.

Employment discrimination case against state government under Title VII (enacted under 14 th Amendment
power)

c.

This case can go forward. Damages against the state treasury.

d.

Combo 14 th Amendment rights with authorizing statute (VII) to file suit in federal courts to get all remedies
available. Intent to override 11 th Amendment immunity.

e.

Settled that Congress could override 11 th Amendment immunity to enforce 14 th Amendment rights but the
question remained whether Congress had similar power under the Commerce Clause.

State Courts as a source of relief barred by the 11th Amendment

1.

Alden v. Maine (p. 1084)

a.

In 1992, probation officers employed by the State of Maine filed a suit against their employer in United States
District Court for the District of Maine. The probation officers alleged violations of the overtime provisions
laid out in the Fair Labor Standards Act (FLSA), a federal statute, and requested liquidated damages and
compensation. The federal court dismissed the suit, stating that the 11 th Amendment to the United States
Constitution gives the states sovereign immunity from suit in federal court. After the dismissal, the probation
officers filed the same action in Maine state court. The state court also dismissed the case based on sovereign
immunity. The case was then appealed to the Maine appellate courts, and then to the Supreme Court of the
United States.
i.

b.

24

Congress has the power to create a private federal cause of action against a state, or its governor, for the
violation of a federal right. The majority holds that with the narrow exception of statutes enacted pursuant to
5 of the 14th Amendment, Congress has no such power. Hence, the majoritys decision forecloses the
possibility of future suits against states by their own citizens asserting federal rights. In doing so, it prevents
Congress from providing a federal forum for a broad range of actions against states, from copyright and
patent law to the regulation of the national economy.

Petitioners had originally brought suit in federal court, but while their suit was pending, the Court
decided Seminole Tribe of Florida , (1996), and the District Court dismissed their claim.
Afterward, petitioners brought their suit in state court, where it was again dismissed. The
dismissal was upheld by the Maine Supreme Court.
May Congress require non-consenting states to submit to private suits in their own courts under Article I?

i.

No. State Supreme Court ruling affirmed. The United States Supreme Court recounts the judicial
development of the doctrine of state sovereign immunity and its application in the federal courts.
The Supreme Court rules that to allow Congress to bring a non-consenting state into state court
when it could not do so in federal court would make hollow the doctrine of sovereign immunity.

ii.

The majority stated that the Supremacy Clause of the Constitution only applies to pieces of
legislation that fit within its design. Therefore, any law passed by Congress pursuant to Article I
that seeks to subject states to suit would violate the original, unamended Constitution. However,
Congress may abrogate state sovereign immunity when it passes legislation to enforce the 14 t h
Amendment. See, for example, Fitzpatrick v. Bitzer (1976).

iii.

The Supreme Court again expands the concept of sovereign immunity. There is no Article I power
to abrogate sovereign immunity either in state or federal court. There is only 14 t h Amendment
authority, and then, only when no substantive right has been created, and only when the means is
congruent and proportional to the remedial or preventative.

1.

In a 54 ruling, the Court concluded that Article I of the United States Constitution does not provide
Congress with the ability to subject nonconsenting states to private suits for damages in its own courts. In
addition, the Court held that Maine was not a consenting party in the suit, and, therefore, the ruling of the
Supreme Court of Maine was upheld. Stated that the United States Constitution provides immunity for
nonconsenting states from suits filed by citizens of that state or citizens of any other state, noting that such
immunity is often referred to as "11th Amendment Immunity". Such immunity, the Court continued, is
necessary to maintain the state sovereignty that lies at the heart of federalism. However, according to Alden
v. Maine, "sovereign immunity derives not from the 11th Amendment but from the federal structure of the
original Constitution itself."

2.

After discussing the 11th Amendment, the Court turned to the question of whether Congress has the authority,
under Article I of the United States Constitution, to subject nonconsenting states to private suits in their own
courts. The majority ruled that Congress has no such authority, under the original unamended Constitution, to
abrogate states' sovereign immunity:
a.

2.

Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by
virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to
private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.

3.

However, Congress may abrogate sovereign immunity when the suit is to enforce a statute protecting 14 th
Amendment rights: "We have held also that in adopting the 14th Amendment, the people required the States to
surrender a portion of the sovereignty that had been preserved...Congress may authorize private suits against
nonconsenting states pursuant to its 5 enforcement power...When Congress enacts appropriate legislation to
enforce this Amendment, see City of Boerne v. Flores, (1997), federal interests are paramount."

4.

The dissent again argues that there is no historical basis for sovereign immunity for the states, and hence, no
argument for construing immunity from the 11th Amendment.

Armstrong v. Exceptional Child Center (p. 141 in supplement)

a.

All of the Justices in Armstrong agree that there is no implied right of action under the Supremacy Clause and
that the authority of federal courts to enjoin the enforcement of state law on the basis of preemption stems
from the courts historic powers of equity.

b.

Majoritys analysis appears to be limited to situations, like the one in Armstrong , where the state law or
executive action that is said to be preempted does not impose obligations on the P.

c.

Whatever its implications in the statutory area, Armstrong appears to leave untouched the general ability of
Ps to sue to enjoin state actions (and federal actors) from violating the Constitution.

d.

No Ex Parte Young remedy. This is an Article 1 federal statutory claim. Not the same as Constitutional
claims.

e.

Immediate impact of this is quite limited when it comes to constitutional claims seeking Ex Parte Young type
of relief, Armstrong has no effect because we have 1983.

1983 Lawsuits and Bivens Liability

Individuals whose constitutional and other federal rights have been violated by federal and state government officers may often bring
federal lawsuits against those officers, as well as against units of the federal government and local governments.

Although there are various ways that a person can seek compensation for violations of specific federal rights, the two most common
methods for obtaining monetary relief for violations of constitutional rights by the government and public officials are the 1983
lawsuits (against state officers and local government) and the Bivens action (against federal officers).
1983 Lawsuits

1983 permits all individuals to file a lawsuit seeking monetary and other damages for violations of their constitutional rights by state
and local governments and their officials.

1983 provides that Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State subjects
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured . Because the statute speaks of laws in
addition to the Constitution, 1983 may be used to sue not only for constitutional violations, but also violations of federal statutes.

Because state governments enjoy sovereign immunity under the 11th Amendment, the federal government does not have the power to
permit lawsuits against the states themselves. Moreover, the states immunity extends to state officers acting in their official capacities.
Municipal and local government entities, however, do not enjoy sovereign immunity and are considered persons subject to lawsuits
under 1983.

Government officials are often protected by qualified immunity. In order to get around that immunity, a 1983 plaintiff must prove
that the officer violated clearly established federal law. If a court finds that a reasonable officer would have known that his or her
conduct was unlawful in a given situation, then qualified immunity can be overcome.

25

Governments and its various agencies can also be sued under 1983 if they had sufficient personal involvement in the violation, or
permitted the violation through gross negligence or by creating a policy or custom permitting the violation.
1983 lawsuits are very commonly brought over constitutional rights violations under the 4 th and 14th Amendment, and typically arise
in the context of excessive force used by police officers. The 8 th Amendments prohibition of cruel and unusual punishment is often the
basis of 1983 lawsuits by prisoners who have been abused by prison officials. 1983 is also a common vehicle for claims by public
employees of 1st Amendment violations of the right to free speech and religion, and of 5 th and 14th Amendment Equal Protection
violations.
Perhaps the most troubling violations of constitutional rights occur in the context of use of excessive force by law enforcement
officers against criminal suspects. Law enforcement officers have the very difficult job of ensuring the public safety and must
sometimes even place themselves at risk to do so. These men and women deserve respect and are rightfully protected by law from
liability for their innocent mistakes. Nevertheless, when law enforcement officers step outside the scope of their official duties and
cause injury to members of the public, they can and should be held responsible for the results of their actions. When their actions rise
to the level of violating a suspects constitutional rights, 1983 is an effective means of holding them accountable.
o Police are not authorized to use excessive forcecommonly referred to as police brutalitywhen arresting a suspect.
Excessive force may range from something relatively minor like slamming a suspect against the hood of a car while
handcuffing him to more extreme acts such as criminal assault, rape, or murder. It is important to understand that not every
instance of excessive force will necessarily result in a constitutional violation.
o Many instances of excessive force by law enforcement officers may be prohibited under state tort law as an assault or
battery, and in those casesdepending on state lawsa state court lawsuit may be possible. But 1983 requires more: the
wrongful police conduct must be objectively unreasonable under the U.S. Supreme Courts 4 th and 14th Amendment cases.
Even if a law enforcement officers actions violate police policy or state laws, that is no guarantee that it is proper for a
1983 lawsuit. Rather, the reasonableness of a law enforcement officers actions in making an arrest or detention will
require that federal courts balance the nature and quality of the intrusion on an individuals constitutional rights against
the importance of the governmental interests claimed as justification for the intrusion.

Where police officers have no reason to believe that a suspect is an immediate threat to the police or others,
officers are not entitled to use deadly force. But where police reasonably believe a suspect is poses a serious
immediate risk of injury or death to others, deadly force is typically authorized. As a plaintiff in a 1983 lawsuit,
the person claiming his or her rights were violated by law enforcement officers will have to carry the burden of
proving that any use of force was unreasonable.
Victims of excessive force and other constitutional violations who successfully sue under 1983 are typically entitled to compensatory
damages, and in some cases, punitive damages and attorneys fees. Compensatory damages include everything from physical pain and
suffering to emotional distress, lost wages, and medical expenses. Punitive damages go beyond the harm actually suffered by the
plaintiff, and seek to prevent future violations. These may be awarded in addition to compensatory damages where the state officers
conduct showed an evil motive, gross negligence, or reckless indifference to an individuals constitutional rights.

Bivens Claims Involving the Federal Government

Bivens action takes its name from a seminal U.S. SC case, Bivens v. Six Unknown Named Agents, in which the Court first held that
lawsuits against federal officers were permissible for alleged constitutional violations, even where no specific federal statute
authorized the lawsuit. This makes the Bivens action a federal counterpart to the 1983 lawsuit, which is used exclusively against state
officers and local governments for violations of individuals clearly established 1 st, 4th, 5th, 6th, and 8th Amendment rights.

Unlike with 1983 lawsuits, where local government agencies may be sued, a Bivens action may not be brought against any federal
government agency. It is only used as a basis for lawsuits against individual officers or officials. Another major difference between
Bivens actions and 1983 lawsuits is that Bivens claims are limited to constitutional violations and typically may not use violations of
federal statutes as a basis for recovery.

Where Congress has provided a separate means of vindicating violations of constitutional rights, a Bivens action may not be
permitted.
o For example, because the Civil Service Commission provides federal employees with a comprehensive remedial scheme,
a federal employee cannot sue his supervisor for damages in a Bivens action claiming 1st Amendment violations.

As in 1983 lawsuits, compensatory damages are the typical remedy available to an individual whose constitutional rights have been
violated.
Constitutional Standing v. Prudential Standing
A person must have standing in order to bring suit in federal court. Standing doctrine is composed of two types of rules.
First, there are constitutional rules, derived from Article IIIs limitation of the federal judicial power to cases and controversies. Congress
cannot confer jurisdiction on federal courts to hear cases that violate a constitutional rule.
Second, there are prudential rules, judge-made standing rules meant to avoid undue litigation, ensure that the parties who bring cases to the
courts are in the best position to develop the issues, etc. Congress has the power to legislatively override prudential standing rules.
The constitutional rules for standing are expressed in Lujan (the following quote is heavily edited for clarity):

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First, the plaintiff must have suffered an injury in fact -an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical. By particularized, we mean that the injury must affect
the plaintiff in a personal and individual way.
Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the
court.

Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. The party
invoking federal jurisdiction bears the burden of establishing these elements.

There are roughly three prudential standing rules:

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The plaintiffs injury must be in the zone of interest that the statute or constitutional pro- vision was intended to protect.
Generalized grievances do not suffice. The key kind of case where this comes up is in taxpayer standing, where someone
challenges government expenditure and the injury they claim is that their tax dollars are being spent on some illegal program.
With very few exceptions, these claims are rejected.

Third-party lawsuits (suits to vindicate the rights of someone else) are disfavored. However, where the third party has his or her
own interest at stake too, sometimes theyll be allowed).