CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 3: Limits on Judicial Power: The Political Question
Doctrine
I.
REVIEW OF CLASS 2: Marbury v. Madison and Judicial
Review
Review Question on Marbury:
As interpreted by the Supreme Court in Marbury, which of the
following statements can be made about Art. III, § 2 cl. 2?
(A) The original jurisdiction of the Supreme Court is set by the
Constitution; Congress can neither add to it nor subtract from
it.
(B) Congress can add to the Supreme Court's original
jurisdiction, but it can't subtract from it.
(C) Congress can subtract from the Supreme Court's original
jurisdiction, but it can't add to it.
(D) Congress can make "any exceptions" to the Supreme
Court's jurisdiction it desires.
II.
Political Question Doctrine: What is it and how does it fit into
the unit on powers?
A. Origins of Political Question Doctrine: Marbury v. Madison
(1803)– slightly different from modern political question
doctrine
B. Should there be a political question doctrine?
C. Sources of PQ doctrine: constitutional, prudential, or both?
III.
The Classic Statement of the Political Question Doctrine in
Baker v. Carr (1962) (C p. 79) Are these good criteria?
Prominent on the surface of any case held to involve a political
question is found a textually demonstrable commitment of the
issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the
1
impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or the impossibility of
a court’s undertaking independent resolution without expressing
lack of the 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.
IV.
Small Group Brainstorming Problems
1. A coalition of US soldiers, parents of US soldiers, and
Members of Congress filed a lawsuit in federal court before the
March 20, 2003 invasion of Iraq challenging President George
W. Bush's authority to wage war against Iraq absent a
congressional declaration of war or equivalent action. The
plaintiffs alleged that the military invasion of Iraq would
violate Article I, Section 8 (the War Powers Clause) of the
United States Constitution, which states that “Congress shall
have Power…[t]o declare War.” They argued that the
Authorization for the Use of Military Force resolution on Iraq
that Congress passed in October 2002 did not declare war and
unlawfully ceded to the President the decision of whether or
not to send this nation into war. The plaintiffs sought
declaratory and injunctive relief against the defendants,
President Bush and Defense Secretary Donald H. Rumsfeld,
enjoining them from waging war against Iraq without a
congressional declaration of war or equivalent action. Does
this case present a nonjusticiable political question? Why or why
not?
2. Imagine that the Senate convicted Bill Clinton on
impeachment and Clinton then claimed that (A) his activities
were not “high crimes and misdemeanors” (see Art. II § 4), or
(B) there was not a 2/3 vote for conviction in the Senate (see
Art. I § 3). Is judicial review of Clinton’s claims available?
2
V. The need for case-by-case inquiry (Baker v. Carr) [C p. 79]
A. Foreign Relations: Goldwater v. Carter (1979 [C p. 92]
B. Impeachment: United States v. Nixon (1993) [C p. 95]
C. Congress’s ability to regulate its internal processes: Powell
v. McCormack (1969) [C p. 90]
D. Guarantee Clause (Art IV § 4) 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 Application of the Legislature,
or of the Executive (where the Legislature cannot be
convened) against domestic Violence.” : Luther v. Borden
(1849) [C p. 78]
E. Reapportionment: Colegrove v. Green (1946), Baker v. Carr
(1962) [C p. 78]
F. Gerrymandering: Davis v. Bandemer (1986), Vieth v.
Jubelirer (2004) [C p. 81], League of Latin American Citizens
v. Perry (2006) [Supp. p. 23]
3
VI. CONCLUSION
1. Baker v. Carr standards, even if as useless as Professor
Chemerinsky claims, are still used to determine whether the political
question doctrine applies in a case.
2. Courts must decide the applicability of the political question
doctrine on a case-by-case basis, so it is very important to be familiar
with Supreme Court’s case law set out above.
3. For the past 4 decades, the Supreme Court has been extremely
sparing in finding the political question doctrine applicable
4. After LULAC v. Perry (2006), a majority holds that equal
protection challenges to partisan gerrymandering are justiciable, but
the majority was very fragmented about the merits – i.e. what is
required for partisan gerrymandering to be a constitutional
violation. So the future outcome of partisan gerrymandering cases is
difficult to predict.
4