Chapter 6 - The role of the Judiciary

1
Chapter 6 - The role of the Judiciary

• Part II

2
Baker v. Carr, 369 U.S. 186, 217 (1962)

• Prominent on the surface of any case held to
  involve a political question is found a textually
  demonstrable constitutional commitment of the
  issue to a coordinate political department or
• a lack of judicially discoverable and manageable
  standards for resolving it or the impossibility
  of deciding without an initial policy
  determination of a kind clearly for non-judicial
  discretion or
• the impossibility of a courts undertaking
  independent resolution without expressing lack of
  respect due coordinate branches of government or
  an unusual need for unquestioning adherence to a
  political decision already made or
• the potentiality of embarrassment from
  multifarious pronouncements by various
  departments on one question.

3
Ange v. Bush, 752 F Supp 509 (1990)

• What was plaintiff's claim in this case?
• What would be the effect on the military if
  plaintiff prevails?
• Why does plaintiff have the same standing
  problems as Congress?
• Will it make any difference to his or Congress'
  standing once the order to invade is given?
• How does Judge Lambert argue that this is a
  classic political question?

4
The Problem of Standards for War Powers Cases

• Does the constitution clearly prevent the
  president from using troops to invade other
  countries?
• Has the president done this without a declaration
  of war since the beginning?
• What standard could a court use to decide that a
  military action is illegal?
• Why does being against a law passed by Congress
  not solve the problem?

5
What does Judicial Abstention Mean to Separation
of Powers?

• Who "wins" when the court invokes political
  question abstention in a war powers case?
• Does this shift the balance of powers between the
  branches of the government?
• Is this better than the separation of powers
  problem posed if the court intervened in a war
  powers case?
• Are the courts right to stay out of war powers
  cases?

6
Gilligan v. Morgan, 413 U.S. 1, 6 (1973)

• The Kent State Shootings
• Who shot whom?
• Who did the shooters work for?
• What did the lawsuit seek?
• What was the separation of powers issue for the
  court?

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The Courts Ruling

• Which branch did the court think should be
  investigating the Guard?
• What provision of the constitution did the court
  base its ruling on?
• What outcome was the court avoiding, i.e., what
  happens if the troopers had been properly ordered
  to shoot the students?
• What about criminal prosecutions under state law?
• What would the state have to show for a
  successful prosecution of the individuals?
• What would be necessary to beat a "following
  orders" defense?
• What are the political chances for such a
  prosecution?
• Who was indicted?

8
In Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.
1979) (en banc), revd, 444 U.S. 996 (1979)

• How are treaties ratified?
• Are the legally effective before they are
  ratified?
• How does the constitution specify that treaties
  are revoked?
• What did Carter propose to do?
• What was Goldwater's claim?
• Dellums turned on the things congress could still
  do
• Is this case different?

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Standing - Northeastern Florida v. Jacksonville,
508 U.S. 656, 663-664 (1993)

• What is injury in fact?
• Concrete?
• Actual, not imminent?
• Causal relationship?
• Redressability?
• Why does a denial of standing not tell us
  anything about the underlying merits of the case?
• Can there be wrongs where no one has standing to
  sue to correct them?

10
Zone of Interest?

• What is the zone of interest?
• Does the plaintiff have to be the one injured?
• Qui tam actions?
• What can congress modify by statute?
• What factors cannot be modified?
• Are these the same in the state courts?

11
Can Congress Change the Court's Behavior?

• Why cant Congress force the court to resolve
  political question cases?
• Can Congress take away the court's jurisdiction
  over national security cases?
• If abstention is the problem, would it matter?
• Are there constitutional limits on this?
• What are the political limits?
• More in the detainee cases

12
Citizen Standing
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Pietsch v. Bush, 755 F. Supp. 62 (E.D.N.Y. 1991)

• What was plaintiff's claimed injury in fact?
• What did the court say about this?
• What about his claim that any citizen should be
  able to sue to require the government to obey the
  constitution?

14
Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208 (1974)

• Why did the plaintiff claim that it was
  unconstitutional for Congressmen to be National
  Guard Officers?
• What constitutional provision does this violate?
• What is the separation of powers problem?

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The Ruling

• standing to sue may not be predicated upon an
  interest of the kind alleged here which is held
  in common by all members of the public, because
  of the necessarily abstract nature of the injury
  all citizens share.
• Why?
• Putting aside the court's ruling, do the
  plaintiffs have a valid constitutional argument?
• What was the problem with their standing?
• Could congress do if it wanted to fix this?

16
Flast v. Cohen, 392 U.S. 83 (1968)

• Why does it matter which constitutional provision
  is being violated?
• What is the two part test?
• What is the link to the taxpayer?
• What is the violation?
• Do you think a tax payer can assert that a war is
  illegal?
• Can a tax payer get standing if he complains that
  he does not want his tax money spent on an
  illegal war?

17
Raines v. Bird, 521 U.S. 811, 829 (1997)

• What did the plaintiff congressmen want the court
  to rule?
• What was their standing problem?
• If congress really though this was
  unconstitutional, what could it do?
• What did the court eventually rule about the line
  item veto?

18
Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C.
1999), affd, 203 F.3d 19 (D.C. Cir. 2000)

• (Bombing Yugoslavia)
• What were the congressmen arguing?
• What does it mean to say that "there were
  congressional votes defeating a declaration of
  war (427-2), defeating an authorization of the
  air strikes (213-213), defeating a resolution
  ordering an immediate end to U.S. participation
  in the NATO operation (290-139)
• What is the legal status of a bill that does not
  pass?

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What did Congress vote for?

• Why does one appropriations bill trump a thousand
  failed bills?
• Would it even trump a successful join resolution
  telling the president to get out of Yugoslavia?
• What can congress do if it does not like a war
  the president is in?
• What can congress do if the president orders in
  troops in violation of provisions of the
  appropriations bill supporting the troops?
• Did Congress do any of this?
• Should that defeat standing?

20
Congressional Standing

• When does Tribe think congressman should have
  standing?
• What does it mean that a presidential action
  nullified a congressional vote?
• What recourse does Congress always have?
• Why does Scalia think that congressmen should
  never have standing in their official capacity?

21
Doe v. Bush, 323 F.3d 133 (1st Cir. 2003)

• Why did plaintiffs say that it was illegal for
  Bush II to invade Iraq?
• What is wrong with the claim that congress
  colluded with the president?
• Why isn't there a real conflict between Congress
  and the President?
• What did Hillary say to explain her vote?
• Do you think the court would have reached a
  different result if they had waited a few days
  and the war had started?

22
In general, why is the role of the courts so
limited as regards illegal wars and fights in
congress over war powers?