Constitutional Law October 5, 2004

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Constitutional LawOctober 5, 2004

• Separation of Powers
• Judicial Power
• Case or Controversy
• Standing
• PQ Doctrine
• Introduction
• Bakers Reorientation
• Application
• Scope of Commitment
• Hamdi

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Recap

• Legislative Executive Power
• Immunities
• Impeachment
• Clinton confluence
• Judicial Power
• Internal and External Limits
• Case or Controversy
• Advisory Opinions
• Standing

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4. Standing

• General
• Who may sue
• Importance
• Manipulation
• Components
• Constitutional (link)
• Prudential (link)
• Allen v. Wright (link)

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C. Political Questions1. Introduction

• Origins in Marbury
• Marshalls dicta re political discretion
• Rationale for review
• Constitutional
• Vesting in Other Branches
• Susceptible to Legal Resolution
• Prudential
• Respect other Branches
• Preserve Institutional Capital

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2. Bakers Reorientation

• Background
• EP challenge to unequal districts
• Luther and Colegrove
• What was the PQ? (link)
• Separation of Powers Basis of PQ
• Political questions, not cases
• Distinguish guaranty clause
• 6 Strands of PQ doctrine

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c. Bakers 6 Strands
Constitutional

• Textually demonstrable commitment
• Lack of judicial standards
• Initial nonjudicial policy decision
• Lack of respect for other branches
• Need for unquestioning adherence
• Potential embarrassment

Prudential
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3. PQ Application

• Areas
• Foreign Affairs (Goldwater)
• Operations of Congress (Powell)
• Impeachment (Nixon)
• Amendment Process (Coleman v. Miller)
• Factors
• Plausible Textual Commitments
• Lack of Judicial Competence
• High Stakes

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4. Scope of Commitment

• Powell (Sole Judge)
• Textual Commitment
• Judicial Determination of Scope
• Only judge if standing requirements met
• No new qualifications
• Nixon (Senate Tries Impeachment)
• Textual Commitment
• No Judicial Determination of Scope

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5. Hamdi

• Citizen Detained
• Captured in Afghanistan
• Govt Alleges Enemy Combatant
• Division of Justices
• Power to Detain?
• C in C (ducked)
• Statute
• Reviewability
• Challenge Enemy Combatant Status
• Analyzed as DP Issue

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5. Hamdi (cont.)

• Scalia/Stevens Either
• Charge with treason or crime
• Suspend Writ of Habeas Corpus
• Thomas
• Presidential power (Congress)
• Judicial incompetence
• Why not PQ?
• Souter/Ginsburg
• Statute does not authorize
• Independent presidential power?

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4.b.i. Constitutional Standing

• P must Suffer Injury in Fact
• Distinct Palpable (not abstract)
• Actual or Imminent (not speculative)
• Causation (fairly traceable)
• Intervening Actors
• Compare Proximate Cause
• Redressed by Favorable Ruling
• Alternative Causes
• Linkage with Causation

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4.b.ii. Prudential Standing

• No Rights of Third Parties
• No Generalized Grievances
• Substantive Nexus
• Zone of Interests
• Taxpayer

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4.c. Allen v. Wright
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Miles v. City Council of Augusta, Ga.
710 F.2d 1542 (11th Cir. 1983)
Plaintiffs Carl and Elaine Miles, owners and
promoters of "Blackie the Talking Cat," brought
this suit in the United States District Court for
the Southern District of Georgia, challenging the
constitutionality of the Augusta, Georgia,
Business License Ordinance. Their complaint
alleged that the ordinance . . .violates rights
of speech and association. . . .
Fn. 5 This Court will not hear a claim that
Blackie's right to free speech has been
infringed. First, although Blackie arguably
possesses a very unusual ability, he cannot be
considered a "person" and is therefore not
protected by the Bill of Rights. Second, even if
Blackie had such a right, we see no need for
appellants to assert it. Blackie can clearly
speak for himself.
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What Was the PQ?
Luther (and Colegrove)
State Government Legitimate?
Violate Guaranty Clause?
Baker
State Government Legitimate?
Violate Equal Protection?
Not Controlling
Controlling
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