Justiciability Part IV Political Questions Feb. 8, 2005

1. Justiciability � Part IV Political Questions Feb. 8, 2005

2. Spring, 2005 Con Law I - Manheim 2 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.�

3. Spring, 2005 Con Law I - Manheim 3 Luther v. Borden (1849) Claim: Sheriff�s search of Luther�s house was trespass (not justified as gov�t search) since RI government did not satisfy Art. IV, � 4

4. Spring, 2005 Con Law I - Manheim 4 Luther v. Borden (1849) Justiciability: �The United States shall guarantee to every State in this Union a republican form of government and shall protect each of them against invasion� The SC would have to decide when a state is republican in form, and how to guaranty that Decision whether state government is republican is committed to sole discretion of those branches of US government that would do the guaranteeing; i.e., the executive and/or the legislative branch

5. Spring, 2005 Con Law I - Manheim 5 Baker v. Carr (1962) Claim: Unequal apportionment of Tennessee legisla-ture violated: Guaranty Clause of Art. IV, � 4 Rejected in Colegrove v. Green (1946) Equal Protection Clause of 14th Amendment

6. Spring, 2005 Con Law I - Manheim 6 Baker v. Carr (1962) Political Questions: Textually demonstrable constitutional commit-ment of issue to coordinate political department

7. Spring, 2005 Con Law I - Manheim 7 Baker v. Carr (1962) Political Questions: Textually demonstrable constitutional commit-ment of issue to coordinate political department

8. Spring, 2005 Con Law I - Manheim 8 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

9. Spring, 2005 Con Law I - Manheim 9 Baker v. Carr (1962) Frankfurter Dissent: �sustained public confidence � must be nourished by the Court�s complete detachment from political entanglements [and] the clash of political forces in political settlements� Why does majority reject? 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

10. Spring, 2005 Con Law I - Manheim 10 Powell v. McCormack (1969) Removing a member of congress Exclusion (Art. I, � 2) �No Person shall be a Representative 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..� Expulsion (Art. I, � 5, � 2) Each House may � punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.� Impeachment (Art. II, � 4) �all civil Officers of the United States shall be removed from Office on Impeachment [and] Conviction...�

11. Spring, 2005 Con Law I - Manheim 11 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 ��

12. Spring, 2005 Con Law I - Manheim 12 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 the answer to both questions is yes, the Court must dismiss (for lack of jurisdiction) If not, the Court can decide the issue

13. Spring, 2005 Con Law I - Manheim 13 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?

14. Spring, 2005 Con Law I - Manheim 14 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.�

15. Spring, 2005 Con Law I - Manheim 15 Goldwater v. Carter (1979) Claim: President�s 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�

16. Spring, 2005 Con Law I - Manheim 16 Goldwater v. Carter (1979) Foreign Affairs: Always non-justiciable political questions?

17. Spring, 2005 Con Law I - Manheim 17 Goldwater v. Carter (1979) Brennan Concurrence: Case unripe Impass may never develop 3 elements of Pol. Qu. Commitment to coordinate political branch Resolution beyond judicial expertise Prudential considerations counsel against deciding

18. Spring, 2005 Con Law I - Manheim 18 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

19. Spring, 2005 Con Law I - Manheim 19 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"

20. Spring, 2005 Con Law I - Manheim 20 Vieth v. Jubelirer (2004) Political gerrymandering �the practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantabe by diluting the opposition�s voting strength�

21. Spring, 2005 Con Law I - Manheim 21 Vieth v. Jubelirer (2004) Claim: drawing districts as to favor one political party violates equal protection (equal voting power) How political gerrymandering works:

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24. Spring, 2005 Con Law I - Manheim 24 Vieth v. Jubelirer (2004) Scalia: Pol. Qu because: lack of judicially discoverable/manageable stds Equal protection claims require proof of discriminatory intent no non-discriminatory explanation Presumably satisfied when 1 political party draws the lines discriminatory effect 1 party is �denied its chance to effectively influence the political process� harder for that party to directly influence the election returns � i.e., to get its candidates elected Note: must assume that Dems vote for Dem candidates, etc traditional line drawing � contiguity, compactness, political subdivisions, geographic featurestraditional line drawing � contiguity, compactness, political subdivisions, geographic features

25. Spring, 2005 Con Law I - Manheim 25 Vieth v. Jubelirer (2004) How can one prove discriminatory effect? I.e., absent political gerrymandering, plaintiff party would have had greater representation? Does any deviation from proportional represen-tation violate the EP clause? No, a variety of legitimate factors could cause that E.g., drawing lines as to preserve political/geogr. boundries The line drawing must be designed and have effect of creating partisan advantage than otherwise would occur traditional line drawing � contiguity, compactness, political subdivisions, geographic featurestraditional line drawing � contiguity, compactness, political subdivisions, geographic features

26. Spring, 2005 Con Law I - Manheim 26 Vieth v. Jubelirer (2004) Scalia: Pol. Qu because: No baseline std exists against which to measure whether pl�s voting strength has been diluted rejects notion of �substantive fairness� a flabby goal In other words, in the context of voting strength dilution, we can�t identify an equal protection violation when we see it So we have no jurisdiction

27. Spring, 2005 Con Law I - Manheim 27 Vieth v. Jubelirer (2004) Scalia: Pol. Qu: Is failure to agree on a standard the same as a �lack of judicially discoverable and manageable standards� to invoke Pol Qu? 5 members of the Ct provide standards, but they are different � how unusual ! Bottom line: because no std. by which to measure vote dilution, there is no judicial rememdy; pl�s should pursue a political remedy from the same body that has structurally disenfranchised them Isn�t this really a case of failure of proof, rather than failure of standard?

28. Spring, 2005 Con Law I - Manheim 28 Vieth v. Jubelirer (2004) Kennedy concurrence: Urges caution because issue is heavily political Standards are elusive, but not alien to courts Pl�s have failed to prove their claim, but not PQ Perhaps a 1st amd claim easier to prove Stevens dissent Apply same std as in racial gerrymandering race (party) cannot be used as predominant factor No standing to litigate statewide challenge Is this the same as PolQu, as Scalia suggests?

29. Spring, 2005 Con Law I - Manheim 29 Vieth v. Jubelirer (2004) Manheim standard ?? Vast number of ways to draw district lines without rigging the election e.g., random districting by computer Each of the possible districting schemes would produce different partisan mix in legislature assuming voters w/ party affiliation vote for party A statistical distribution would result showing likely legislative power for each party If districts actually drawn produce legislative mix that substantially differs from expectation Then state has burden to show no gerrymandering

30. Spring, 2005 Con Law I - Manheim 30 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? Can Senate overrule CJ (e.g., on motion)? Can Clinton be indicted even though acquitted?