Question

The Constitution in Your Community
Judicial review is a well- accepted frequently exercised authority by local, state, and federal courts. The most frequent use is in reviewing the arrests, searches, and other activities of government in criminal justice. It is frequently used in noncriminal cases too. While many constitutional challenges to laws and executive actions rely on the U. S. Constitution, many state constitutional challenges to state actions exist as well. Assume that you are working for a local prosecutor’s office. One of the assistant prosecutors in the office is involved with a case where the defense attorney is challenging the constitutionality of the state criminal code being used to prosecute the defend-ant. The defense attorney has filed a motion asking the trial court to exercise its power of judicial review and declare the criminal statute unconstitutional under the state’s constitution. Without getting into the particulars of the code or its possible defects, the assistant prosecutor would like for you to research the power of judicial review held by courts within your state.
Going Federal
Assume that you are working for a law firm that has been retained to challenge the constitutionality of the recently enacted federal health- care law. See “ Is Health Care Law Constitutional?” www.washingtonpost.com/ wp-dyn/content/ www.washingtonpost.com/wp-dyn/content/ article/ 2010/ 03/ 19/ AR2010031901470. html . A senior partner has asked you to help her prepare for a meeting with the client. Prepare a short ( 1– 3 pages) analysis of the federal constitu-tional questions raised by the law.
Moot Court
On October 12, 2010, U. S. District Court Judge Virginia Phillips ordered the United States to stop enforcing its “ don’t ask, don’t tell” policy in the armed forces, which she had previously found to be violative of the First and Fourteenth Amendments in Log Cabin Republicans v. United States of America ( Case No. CV- 0408425- VAP, Cen. Dist. CA, October 12, 2010). The “ don’t ask, don’t tell” policy prohibits asking mem-bers of the military about their sexual preferences but also provides for the discharge of admitted gay and lesbian members. Judge Phillips’s order applied throughout the United States, to all of the armed forces. The Obama administration challenged the authority of Phillips, who is judge of a federal trial court with jurisdiction in central California, to issue a nation- wide order. The United States requested a stay of the order pending appeal. Judge Phillips refused to stay her order, but the Ninth Circuit Court of Appeals granted the United States’ request. ( See Log Cabin Republicans v. United States of America ( Case No. 10- 56634, 9th Cir., October 20, 2010).) Set aside any statutory issues concerning Judge Phillips’s authority to issue such an order. Instead, focus on whether a federal trial court should have the authority to exercise judicial review and issue nation- wide orders. Consider the possibility of con-flicting judgments between districts or circuits ( federal appellate courts). Remember the Supreme Court exercises discretionary jurisdiction in nearly all cases. That is, it does not have to hear most cases that are appealed to it. On the other hand, consider the limitation on rule of law that would exist if only the Supreme Court had such authority. Working in teams of two, the first team should prepare a five- minute oral argument favoring judicial review at all levels of the judiciary. The second team should prepare a five- minute oral argument opposing this authority at all levels. The second team should present and defend an alternative model.


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  • CreatedAugust 12, 2015
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