“Political” Questions

Question 1

Justiciability

Answer 1

a) Definition: formal questions of jurisdiction aside, there are some number of things that the federal courts are unwilling to decide.
b) Requirement of standing: must be a particular plaintiff that has something to gain or lose as a result of the litigation.
c) Absence of Controversy is one ground for a case being non justiciable
i) The federal courts do not issue advisory opinions - based on Art. III which limits federal courts to decide cases and controversies.
(1) Advisory opinions problem: the court cannot really see the issue without real facts, with real people and real stakes.
d) Mootness: if the issue has already been resolved/outcome will not make a difference
i) Ripeness doctrine: the opposite, there is not yet a controversy
e) Political Question Doctrine.

Question 2

Political Question:

Answer 2

a) Definition: a political, constitutional question that is better decided by the political branches than by the courts – where a textually demonstrable constitutional commitment of the issue is given to a coordinate political department.
i) Just because a question is political, does not mean it is non-justiciable ii) Much of the modern doctrine comes from Baker v. Carr, in which SCOTUS said it was able to make determinations about apportionment and re-apportionment.
iii) Why are there certain things that courts cannot review?
(1) Checks and balances of power
(2) Difficulty of fashioning relief
(3) Counter-majoritarian

Question 3

b) Three types of political question doctrine (Baker v. Carr)

Answer 3

i) Textually demonstrable commitments to a coordinate branch of government. If the Constitution gives another branch of government the right to decide an issue, then the judiciary is not going to decide it. (Nixon v. United States, Powell v. McCormick)
ii) The courts will not decide an issue if there is a lack of judicially discoverable and manageable standards. (No one knows what this means)
iii) The courts should not decide issues where there are potentially embarrassing confrontations with the other branches of government (won’t hear cases if the other branch of government is not going to comply).

Question 4

Powell v. McCormick

Answer 4

Powell had family members on US payroll, took personal trips on federal bill. House voted to exclude him from the House of Representatives.
i) Held: the textual commitment of congress to determine the qualifications of its own members (Article I, §5) extended only to the qualifications that existed in the Constitution (Article I, §3). But this qualification (not being financially mischievous) does not appear in the constitution. Powell won.

Question 5

Nixon v. United States (the judge) (1993)(p.29)

Answer 5

i) Walter Nixon (District Judge) was tried and convicted for taking bribes. Senate sought to remove him. Nixon challenged on the ground that the rule violated the impeachment clause
(1) In the impeachment proceedings in the House, the trial takes place in the Senate, and the House impeaches.
(2) The Senate can sit as a committee of the whole.
ii) Rule: A controversy is non-justiciable where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department.
(1) The decision that this case is non-justiciable turns not the interpretation of “sole” in
Article I, §3, cl. 6: “The Senate shall have the sole Power to try all impeachments.” iii) Dissent: (1) “sole is not excluding the court from reviewing the decision. It is more concerned with separating the initiation and the prosecution of an impeachment between the two houses of legislature. (2) “sole” could also be a stylistic change from the word “all” as used in different places in the Constitution; and despite the use of the word “all” the Court has been willing to review other acts of Congress where the word “all” is implicated.