constitutional law i spring 2004 justiciability – part iii feb. 3, 2004

Spring 2004

Constitutional Law I

Justiciability – Part III

Feb. 3, 2004

Generalized GrievancesTaxpayer StandingCitizen Standing

Flast v. Cohen (1968)Claim: Expenditure of federal funds on

religion violates the establishment clause“Congress shall make no law respecting an establishment of religion …” 1st Amd.

Standing: Injury in fact: Pl. taxes used to fund religion Frothingham v. Mellon (1923): taxpayer

standing is inadequate De minimus injury Generalized injury

Flast v. Cohen (1968)Dual nexus in taxpayer cases Logical link between injury and challenged law

Only approp. under taxing & spending clause allowed Logical link between injury and const’l claim

Only claims alleging specific prohibition on taxing or spending allowed

Familiar causation

requirement Required only in

taxpayer cases

Flast v. Cohen (1968)Link between taxpayer status and expend-itures violating specific const’l limitations If const’l provision intended to prevent use of tax money for a purpose, then taxpayer has a requisite stake in outcome of controversy

Establishment & Free Exercise clauses intended for such a purpose Originalist interpretation of religion clauses (Madison)

Injury-Claim nexus not required in any other context; only taxpayer standing

Flast v. Cohen (1968)Harlan Dissent:Distinction betw. direct / incidental expenditures

Example: direct aid to a religious sect vs. burdensome regulation of other sects

Is Harlan right that taxpayer has same interest in bothDistinction for Const’l limits on spending power

Need to harmonize disparate const’l provisions/policies Distinct injury (Art. III) vs. Specific prohibition

Restraint despite delegated jurisdictionPrudential rules, esp. where other branches are sensitive to constitutional liberties Is this valid w.r.t. religion?

Valley Forge Christian College (1982)

Claim: Gift of federal property to religious

schools violates the establishment clause“Congress shall make no law respecting an establishment of religion …” 1st Amd.

Taxpayer standing: Link between injury and challenged action

Executive branch vs. congressional action Gift of property (under Art. IV, § 3, cl. 2) vs.

gift of money (under appropriations clause) Are these distinctions principled ones?

What about tax exemption for religion?

Valley Forge Christian College (1982)

Brennan’s dissent: Proper tone? Is his criticism of obtuse formalism

valid? Doesn’t 1st amd itself draw a

distinction between congress and executive?

Generalized GrievancesTaxpayer StandingCitizen Standing

U.S. v. Richardson (1974)Claim: Secret CIA budget violates app. cl.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Art. I, § 9, cl. 7

Standing Nexus: Logical link between injury and challenged law

Approp. under taxing & spending clause per Flast Logical link between injury and const’l claim

Specific limitation upon taxing/spending power?

U.S. v. Richardson (1974)Generalized Grievance Is const’l limitation less specific than in Flast? Is claim more generalized than in Flast?Can anyone litigate this case?

J. Rehnquist: “the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of congress.”I.e., this action by congress is beyond judicial review

Does Richardson overrule Flast? Marbury?Should S.Ct. have roving commission to police the constitution? Council of Review?

RipenessTiming: avoidance of premature litigation Premature if harm lies in future without fair

degree of certainty that it will occur Premature if facts are yet to gel, such that

precise contours of controversy are unknown Ex: challenging statute before signed into law

Certainty that a dispute exists, not hypothetical Ex: challenging a law after enactment but

before it is applied to plaintiff zoning restriction before the property owner seeks

permits or variance (specific facts don’t yet exist)

Poe v. Ullman (1961)Claim: Connecticut law prohibiting use or

prescribing birth control violates right of privacyInjury: Prosecution always satisfies injury & causation Fear of prosecution?

How well-founded? If unlikely, what purpose does litigation serve? No prosecutions since 1879 Except to intimidate clinics ???

Loss of income (from counseling services)?

Abbott Labs v. Gardner (1967)

Claim: Secretary of HEW exceeded statutory power

in promulgating drug labeling regulationInjury: Compliance would be expensive & affect salesRipe? Are facts sufficiently concrete even without

violation and subsequent prosecution? Declaratory judgments are discretionary Administrative Procedure Act Requires “Final Agency Action”

MootnessPlaintiff must have live controversy when complaint filed, AND at all stages of litigation burden on Def’t to establish mootnessCase can become moot Parties die, events occur or lapse Controversy is settledExceptions to mootness Voluntary cessation of harm Capable of repetition yet evading reviewArt. III or Prudential?

Capable of Repetition w/o Review

Moore v. Ogilvie (1969) Election controversies are usually over by the

time case can be resolved Strict mootness doctrine would preclude reviewRoe v. Wade (1973) Pregnancy usually over before case decidedDefunis v. Odegaard (1974) Law School usually over by time case is final But dispute not capable of repetition for himfor him

Thus, he might not have requisite stake in outcome Should case have been filed as class action?

Voluntary Cessation of Harm

Ex Parte Yerger (1868) Union army released him before S.Ct. decided

Party asserting mootness has burden of proof to show

wrong “could not reasonably be expected to recur”

v. (2000)

After adverse ruling by Ct. of Appeals, Laidlaw closed

Class Action Suits – Geraghty (1980)

At least 1 member of class must have live controversy at all stages of case Need not be named

class representative If class cert. sought

before case is moot Substitute in new

class representative, Or appeal denial of

certification