Judicial Review - Constitutional Law

Under Marbury v. Madison, SC has the power to review the constitutionality of federal executive actions and federal statutes.

Veto power and appointment of an office are entirely within the president’s discretion and cannot be judicially reviewed.

Where the executive has a specific legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus

1. specific, particular duty(“Safe Product Act” probably not a specific duty)

Issue: Two readings of Judicial Act

1. Marshall’s reading: SC has OJ in any case where P seeks writ of mandamus

2. SC has power to issue mandamus in cases otherwise within its Jurisdiction. Under this reading JA would not be unconstitutional

Constitutional Issue 1: Under Marshall’s reading, is JA, which gives OJ to SC to hear this case, consistent with the Constitution?

1. Art. III § 2 Cl. 2 SC OJ and AJ:

   1. OJ: Trio Cases= Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party

   2. AJ: all other cases

   3. Two reading of Cl. 2

      1. Floor and Ceiling, Marshall’s reading: SC has OJ only over Trio Cases

      2. Floor only: SC has OJ over Trio Cases, can also have OJ over other cases

Constitutional Issue 2: If not, does the court have the power of judicial review? Argument for judicial review:

1. Constitutional theory argument

   1. constitution is supreme vis a vis statutes

      1. Written constitution: Power of the legislation is limited and defined by the written constitution. These limits are meaningless unless subject to judicial review.

         1. Counterargument: other countries with written constitution do not grant judiciary the power to invalidate conflicting statutes.

      2. original understanding at the time of the framers

      3. theory of popular sovereignty: people have an original right to establish fundamental principles in the Constitution

   2. Institutional allocation: it’s the judicial duty of SC to interpret the law, to invalidate statutes as unconstitutional (even if Congress thinks otherwise)

      1. Counterarguments:

         1. SC can interpret the law without deciding its constitutionality.

         2. Clear/ unclear violation: those examples (tax, duty, federal bill of attainder) are clear violation of Constitution, but JA’s violation is not as clear.

2. Arising under jurisdiction of SC: Art III grants SC the JP over all cases arising under the Constitution, this implied JR

   1. Counterargument: SC’s power to decide cases under the Constitution still could have significant content without the power to invalidate federal statutes. E.g. SC can still apply federal statutes, and evaluate the constitutionality of state...