Justiciability Part IV

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• Justiciability Part IV
• Feb. 5, 2004

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Political Questions

• Marbury
• Questions, in their nature political, or which
  are, by the constitution and laws, submitted to
  the executive, can never be made in this court.
• in cases in which the executive possesses a
  constitutional or legal discretion, nothing can
  be more perfectly clear than that their acts are
  only politically examinable.

True of congress also?
Political branch has both power and discretion
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Baker v. Carr (1962)

• Claim
• Unequal apportionment of Tennessee legisla-ture
  violated
• Equal Protection Clause of 14th Amendment
• Guaranty Clause of Art. IV, 4 The United
  States shall guarantee to every State in this
  Union a republican form of government, and shall
  protect each of them against invasion, and, on
  the application of the legislature or of the
  executive (when the legislature cannot be
  convened) against domestic violence."

power
Discretion ?
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Luther v. Borden (1849)

• Claim
• Sheriffs search of Luthers house was trespass
  since government was not republican in form
• Justiciability
• Guaranty clause claims pose political questions
• Decision whether state government is republican
  is committed to sole discretion of political
  branches

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Baker v. Carr (1962)

• Political Questions
• Textually demonstrable constitutional commit-ment
  of issue to coordinate political department

This is the essential element of the Pol. Qu.
doctrine
Does the constitution assign to one of the
political branches (of the federal government)
power to act wrt the issue ?
Power alone is insufficient. The branch must have
final decision-making authority (i.e., discretion
to act)
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Baker v. Carr (1962)

• Political Questions
• Textually demonstrable constitutional commit-ment
  of issue to coordinate political department

• Lack of judicially discoverable and manageable
  standards for resolving the issue

2nd element flows from the 1st If the const.
assigns the issue to a political branch, there
is unlikely to be judicially discoverable
standards
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Baker v. Carr (1962)

• Political Questions
• Textually demonstrable constitutional commit-ment
  of issue to coordinate political department
• Lack of judicially discoverable and manageable
  standards for resolving the issue

• Impossibility of deciding without initial policy
  determination clearly for nonjudicial discretion
• Lack of respect due coordinate branch of govt
• Unusual need for unquestioned adherence to a
  political decision already made
• Potential embarrassment from multifarious
  pronouncements by various departments

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Baker v. Carr (1962)

• Frankfurter Dissent
• sustained public confidence must be nourished
  by the Courts complete detachment from political
  entanglements and the clash of political forces
  in political settlements
• Political Questions vs. Political Cases
• Does Equal Protection clause implicate any of the
  concerns underlying the Pol. Qu. Doctrine?
• Only applies to coordinate political branch
• A function of SoP
• Not to be confused with federalism

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Powell v. McCormack (1969)

• Claim
• Exclusion from House exceeded grounds specified
  in Art. I, 2
• No Person shall be a Represen-tative who shall
  not have attained to the Age of 25 Years, and
  been 7 Years a Citizen of the US, and an
  Inhabitant of that State

• Defense
• Art. I, 5 commits exclusion to discretion of
  House
• Each House shall be the Judge of the Elections,
  Returns and Qualifications of its own Members

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Powell v. McCormack (1969)

• Jurisdictional question
• Whether an issue presents a political question is
  itself a judicial question
• Court decides if coordinate branch
• Has power to act on the issue
• Has discretion to make a final decision on the
  issue
• If so, the Court must dismiss
• If not, the Court can decide the issue

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Powell v. McCormack (1969)

• What power discretion does the Qualifications
  clause give to congress?
• To decide all qualifications? Moral character?
• If so, any exclusion by House would be
  unreviewable
• Decide the standing qualifications of Art. I, 2
• Exclusion on those grounds would be unreviewable
• Exclusion on other grounds is reviewable.
• Which construction supported by history and
  political theory?

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Powell v. McCormack (1969)

• Is Expulsion a political question?
• Art. I, 5, 2 Each House may punish its
  Members for disorderly Behaviour, and, with the
  Concurrence of two thirds, expel a member.

• Why not Expell Powell, rather than Exclude him,
  if Expulsion is a non-review-able Political
  Question?

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Goldwater v. Carter (1979)

• Claim
• Presidents unilateral abrogation of treaty with
  Republic of China violated Art. II, 2, 2
• The President shall have Power, by and with
  the Advice and Consent of the Senate to make
  Treaties, provided two thirds of the Senators
  present concur

• What power has been dele-gated to the President?
  To the Senate?
• Are these judicial questions?
• Do they lack judicially manageable standards?

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Goldwater v. Carter (1979)

• Foreign Affairs
• Always non-justiciable political questions?

• Inter-branch disputes?
• Even where the sole question is which branch has
  power to act?
• When should the Court intervene?
• Powell only when branches are at impasse
• Why is this case unripe?
• Senate hadnt taken any action only Sen.
  Goldwater
• What injury had Goldwater suffered? standing

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Goldwater v. Carter (1979)

• Brennan Concurrence
• Case unripe
• 3 elements of Pol. Qu.
• Commitment to coordinate political branch
• Resolution beyond judicial expertise
• Prudential considerations counsel against deciding

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Goldwater v. Carter (1979)

• Brennan Concurrence
• Case unripe
• 3 elements of Pol. Qu.
• Commitment to coordinate political branch
• Resolution beyond judicial expertise
• Prudential considerations counsel against deciding

Begs the question
Need only apply std principles of const'l
interpretation
Deciding which branch has power to act shows no
disrespect for either

• Doesn't the Court have a special duty to decide
  when the political branches disagree on who has
  power?

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Nixon v. United States (1993)

• Claim
• Trial of impeachment by Senate panel (rather than
  full Senate) violates Art. I, 3, cl. 6
• "The Senate shall have the sole Power to try all
  Impeachments"

Fairly clear that Senate has power. Does this
also confer discretion?

• Additional reason for courts to stay away
• Compromises system of checks balances
• Same SoP foundation as Pol. Qu. Doctrine
• Impeachment is const'l check against judiciary

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Impeachment as Pol. Question

• Questions re impeachment of Pres. Clinton
• Can House of Rep. delegate investigation to
  special prosecutor (an executive officer)?
• Who decides whether lying to grand jury about sex
  in WH is a "high crime or misdemeanor"?
• Does Bill of Impeachment from 105th congress
  survive for trial by 106th congress?
• Since vote was taken after election, can lame
  duck Reps (e.g., lost reelection) vote?
• Can President of Senate vote if next in line?
• Ccan Senate overrule CJ (e.g., on motion)?
• Can Clinton be indicted even though acquitted?