The Federal Judicial System and the Federal Judicial Power

1) Background the Origins and Structure of the Federal Judiciary Article III 1 o Judicial power shall be vested in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish. Supreme Court established, cannot be abolished by Congress Congress controls the existence of the lower courts. o This is the Madisonian Compromise between those wanting extensive federal judiciary (fearing/mistrusting states) and those fearing a King's judiciary like colonial times. Mandates one highest court, gives Congress control over whether to establish and how to establish lower federal courts. Requires that state courts be able/allowed to enforce federal rights. Supremacy Clause (Art IV cl 2) requires state courts to follow the Constitution and federal law above state laws. Compromise inherently values state courts as protectors of federal rights. Gives at least one federal forum in appellate review of Supreme Court (how done textually?) Article III 2 o Judicial power shall extend to all Cases arising under this Constitution, the Laws of the United States, and Treaties affecting Ambassadors, other public Ministers and Consuls of admiralty and maritime Jurisdiction o Judicial power shall extend to Controversies to which the United States shall be a party between two or more States between a State and Citizens of another State Question of sovereign immunity, Chisolm, 11th Amendment. between Citizens of different States between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects. Supreme Court Jurisdiction Art III, 2 o Original shall have original Jurisdiction Ambassadors, other public Ministers and Consuls And those in which a State shall be a Party o Appellate in all other Cases before mentioned, the Supreme Court shall have Appellate Jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

Source of Congressional power to take away Supreme Court appellate review. Article IV, 1 Full Faith and Credit Clause o Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. o Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Article VI, cl. 2 Supremacy Clause o This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

2) The Nature of Federal Judicial Power Marbury v. Madison (1803) Adams appoints Marshall (Secretary of State) to serve as Chief Judge of SCT. In order to preserve federalist power, Congress passes Midnight Judges Act, creating 16 new Article III judgeships to be filled with federalists. Also shrinks SCT down to 15 to take away opportunity for appointment. Jefferson wins shortly after. Next day, Congress passes Justices of the Peace Act, creating 42 Article I judgeships to be filled with federalists before Jeffersons inauguration. Marshall comes (in secretarial capacity) to sign them in. However, the next day, 6 judgeships have been signed, but not delivered. Question is whether they are valid. The Court established general principles about judicial review and the role of the court. o Judiciary says what the law is Marshall states that It is emphatically the province and duty of the judicial department to say what the law is. Its not the job of Congress or the executive branch. o Judiciary has power to declare legislation unconstitutional because judges interpret the Constitution they have the power to strike down the laws of Congress that violate it. There is a sharp line between deciding the rights of individuals and rulings/presiding over discretionary powers of the political branches. With respect to discretionary functions, Marbury says the court should not interfere or second-guess how the functions are undertaken. Laid the foundation for the political question doctrine o Article III creates ceiling on SCT jurisdiction Congress cannot enlarge scope of jurisdiction granted to SCT in Article III. Provision of 1789 Judiciary Act empowered court to issue writs of mandamus. As such, it enlarged SCT original jurisdiction and was invalid. o Most important for every right, there must be a remedy in order for the Constitution to have any meaning, there must be a forum to vindicate federal rights.

Competing Models of Judicial Review o Dispute Resolution/Private Rights Model (traditional) courts adjudicate private claims between specific parties based on concrete harm. Judicial review should only be used when necessary; very limited role. Rationale avoid overreaching, respect commitment, should not seek out constitutional controversies. o Law Declaration/Public Rights Model purpose of courts is to define and protect the Constitution and individual rights, regardless of whether disputes exists. Rationale judicial supremacy, court is best positioned to protect rights. Advisory Opinions o Hayburns Case (1792) Pensions Act of 1792 gave federal circuit courts job of entertaining petitions from persons claiming entitlement to pensions. Courts were supposed to hear evidence to determine whether petitioners were entitled to pensions, and then submit names of qualified persons to Secretary of War. Congress cant give SCT non-judicial functions Court held that Act was unconstitutional. Neither Congress nor executive branch can give judiciary non-judicial duties. To do so would be radically inconsistent with the independence of the judiciary. Article III problem has a specific order for things to happen, and does not appear to be understanding that President or subordinates could second-guess outcome in the courts. Constitution specifies an appellate process within the courts, not outside powers. o Correspondence of the Justices (1793) Washington and Jefferson sent questions to the SCT What does this Treaty with France mean, etc. Justices did not answer any of the questions most of the questions goes to issues of foreign affairs, diplomacy, and other subjects which are committed to the discretion of the Executive Branch, Article III judicial power extends to all cases and controversies. Constitution limits the contours of judicial power. Courts decide cases or controversies, not a laundry list of hypothetical questions. Rationale separation of powers and commitment. Fear of embroiling the judiciary in politics. Allowing executive and legislature to punt on difficult issues. Cohen Case SCT states that it is inherent in judicial power that it only act in actual cases. o Ex Parte Quirin eight German soldier (including one American citizen) are tried in military tribunal on American soil for unlawful acts. SCT issues order before write opinion. Before order, FDR says will execute them regardless of SCT decision. Professor Tyler this contravenes the idea of commitment; the other branches need to respect and obey the conclusions of the court.

o Line-Item Veto Act 1996 Congress challenged the Act on the grounds that it diluted their lawmaking power. President Clinton hadnt exercised this power under the Act, but it was certain they will. What should the Court do? Hear the case members are injured when law is passed. Voting power diminished when law is passed. Wait for an injury (correct view) Court should wait because nothing at stake now. Changes the balance of power; better left for the political branches to sort it out themselves. Important goes back to the idea of (1) commitment, and (2) role of the courts. Under Marbury, judicial review must occur because of necessity. 3) A Primer on the Case or Controversy Requirement A. Standing to Sue Professor Tylers Framework underlying principle that Court should only exercise power as necessary and in a limited fashion (cant create standing for injuries that are not sufficient under Article III). Two questions: o Has there been a violation of a legal duty? o Is this person permitted to complain about it? o Purpose of Requirement Ensures controversies will be concrete Energetic litigants Limited role for judiciary

(1) Constitutional Standing Constitutional Requirements under Article III o Injury-in-fact concrete and personalized injury; cannot be an injury that is speculative or a general grievance. Personal stake is necessary. o Causation connect injury to claim that you are making. o Redressability need to be able to connect what you seek the court to do and relief for injury. Court must be able to fix the problem. Injury-in-Fact General Principles o Personal stake party seeking judicial review must be himself among the injured o Concrete (non-speculative) injury o No generalized grievances individualized harm necessary. Lujan v. Defenders of Wildlife (1992) Plaintiff is an organization for wildlife preservation; seeking declaratory judgment that new agency regulation that does away with consultation requirement is unconstitutional, and want regulation changed back to require consultation. Concerned that projects may have an impact on wildlife overseas because agencies dont have to report possible environmental impacts. o Psychic injury not sufficient members concerned about diminishing endangered species populations in specific countries.

No evidence that directly affected by this agency regulation (and rapid decline of species) apart from their special interest in the subject. Injury is entirely conjectural no idea when going back to these countries. o Ecosystem nexus injury not sufficient claim that we all are part of ecosystem, all inhabitants are affected when one dies. Plaintiffs have no personal stake in the matter; no evidence that members are going to use the area affected by the challenged activity. Professor Tylers Explanation o Majority (Scalia) dismissive of generalized grievances plaintiff is no different than members of the general public. Essentially, its a public referendum on the President's environmental policy. o Lack of individualized claim everyone is going to be affected by the ecosystem changes; this type of claim is better exercised at the ballot box. o Policy rationale for requirement Court is concerned with expanded role; if allow generalized grievances, then judicial forum for everyday grievances. Concerns about commitment; meddling in the affairs of the political branch. Marbury embraces dispute-resolution model Court should only exercise judicial review in specific cases; role is not the general overseer of government. Friends of the Earth v. Laidlaw Environmental Services (2000) Court held that the plaintiff produced sufficient concrete evidence of harm to their recreational and aesthetic interests, and upheld standing to challenge the defendants non-compliance with CWA. o Justice Ginsburg the relevant showing for purposes of Article III standing is not injury to the environment, but injury to the plaintiff, which existed because of their reasonable concern that pollution had damaged land that they otherwise would have used.

(2) Issues with Generalized Grievances General rule no standing when the asserted harm is a generalized grievance shared in a substantially equal measure by all or a large class of citizens. o Rationale issue of commitment; proper forum is the political process. No matter how flagrant the violation, or how strongly you care about the issue, the plaintiff is not situated any differently from other members of the general public. These injuries are better dealt with through the political process. Judge Fletchers inquiry focus should be on the meaning of the particular constitutional or statutory provision relied upon, and whether such provision should be construed to give a plaintiff a right to sue. o Professor Tyler ask whether there is a right that has been created by constitution or statute that lends itself to judicial enforcement, and whether, by design, this person can complain about it in court.

Taxpayer Standing Cases o Fairchild v. Hughes (1922) the judicial power cannot be invoked to vindicate the general right, possessed by every citizen, to require that the government be administered according to law. o Frothingham v. Mellon (1923) federal taxpayer attacked Maternity Act; claimed that he was being taxed in violation of DPC because Congress was spending the money in a way not authorized by Article I. No standing concerned about remoteness of the injury (fraction of additional tax), and the fact that it was being asked to assume a position of authority over the acts of Congress. o United States v. Richardson (1974) federal taxpayer sued because he felt that Congresss willingness to keep the CIAs budget a secret violated the Constitution. No standing generalized grievance that is common, and undifferentiated from all members of the public. Role of the political process when dissatisfied citizens want a change, they should go to the ballot box, not the courts. o Flast v. Cohen (1968) federal taxpayer challenged the constitutionality of an expenditure that increased financial support for education in religious schools on the grounds that it violated the Establishment Clause. Yes standing the Court granted the plaintiff standing, and permitted the suit to proceed on the theory that courts have a special role to make sure that other branches stay in bounds. Dissent Justice Harlan wrote that the historic core of the judicial role is the private rights model, although courts can go further. If they do go further, though, they make a big change in the historic allocation of power between the branches. These changes should only occur if Congress OKs them (as by granting private individuals standing in suits). o Valley Forge (1982) plaintiffs challenged an executive decision to transfer surplus property to a religion institution. No standing for taxpayers to challenge a gift of property made by the executive branch to a Christian school. No member of the general public can sue to challenge this. Distinguishing Flast this government act is not based on spending power, but property clause. Not a legislative action, but executive discretionary action. o Hein v. Freedom from Religious Foundation (2007) Court read Flast narrowly. President create a White House office and centers within federal agencies to ensure faith-based community groups would be eligible to apply for federal funds. Plaintiff claimed that action violated the Establishment Clause.

No standing challenged is predicated on the executive branch, so no standing to sue for generalized agreement. President is spending money appropriated by Congress to promote the interest of religious organizations. Distinguishing Flast Justice Scalia and Thomas all claims are psychic injuries, rather than wallet injuries. They suggest we should overrule Flast get rid of it to clarify doctrine.

Professor Tylers Explanation of Taxpayer Standing (endorses Judge Fletchers view) o Fletchers theory explains differences in Richardson, it would seem the Constitution puts the power of policing the FBI in the hands of the recipients of the accounting, i.e., the Congress. But the Establishment Clause is different it was designed to allow citizens to sue and protect minority interests from the political process where they don't get a fair shake. o Bad policy if standing turns on the semantics of pleading the inquiry instead should: Look to the underlying statute involved, and Ask if there is a reason that Congress would want individuals to pursue this in court, or does it suggest that Congress should police compliance itself by cutting off funding. Actions by Legislators o Coleman v. Millers (1939) Court held that Kansas state legislators who had voted against ratification of the Child Labor Amendment had standing to seek review of a state courts refusal to enjoin state officials from certifying that Kansas had ratified the amendment. Deciding vote cast was ineffectual. o Raines v. Byrd (1997) Court rejected the standing of members of the House to challenge the constitutionality of the Line-Item Veto Act. Plaintiffs claimed that diluted their Article 1 voting power. Court found no standing for institutional inquiry a loss of political power and not deprived to which they are personally entitled to.

(3) Causation and Redressability Requirements General Rule Article III requires not merely a cognizable injury, but also one that is fairly traceable in a causal sense to the challenged action and that will be redressed by a favorable decision. o Redressability not easily distinguished from the other requirements. o Central Problem how to characterize the relevant injury. Linda RS v. Richard D (1973) Court held the plaintiff lacked standing. Plaintiff, an unwed mother, brought a class action seeking an injunction to get Texas authorities to enforce child support laws for illegitimate children.

o Court dismissed the action because it was too speculative whether the failure of the father to pay was caused by the lack of enforcement, nor could it be said that an injunction would redress the injury because the father might still lack money. Regents v. Baake (2003) Court recognized the plaintiffs standing. White plaintiffs challenged to the defendants operation of a special admissions program for minority applicants. Framed the injury so could be redressed; deprived, because of his race, of the opportunity to compete for every place in the entering class. Lujan v. Defenders of Wildlife (1992) Even if the plaintiffs were planning on visiting these decimated areas, it was not clear that the Court could solve the problem with judicial relief. Plaintiff has not shown that our decision will make a difference because (a) different areas of funding, and (b) no requirement to follow recommendations of consultation.

(4) The Power of Congress to Confer Standing General Rule Congress can give citizens the ability to sue for generalized grievances, but it must define specific injuries and articulate a sufficient chain of causation. o Justice Scalia has lost the battle that Congress can never confer standing for generalized grievances. Warth v. Seldin (1975) bar against raising generalized grievances is a prudential standing requirement, not constitutional. Congress can create statutory right or entitlement, and the alleged deprivation of such can confer standing where no judicially recognizable injury. Citizen-Suit Provisions o Lujan v. Defenders of Wildlife (1992) Court treated the bar on citizen standing as constitutional. The ESA provided that any person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision in this chapter. The plaintiffs invoked this authority as the basis for a suit challenging the new regulation ending consultation. Generalized grievance as a constitutional bar Plaintiffs were asserting a generalized grievance and that Congress by statute cannot authorize such standing in this instance. The prohibition against citizen standing was characterized as being derived from Article III, and therefore, not susceptible from statutory override. Majority (Justice Scalia) Congress can confer standing by creating a statutory cause of action, but when doing so, they have to identify a concrete interest. Congress cannot try to back-door standing for a generalized grievance that interferes with the executive branch. Justice Kennedy Concurrence agreed with the judgment because this citizen suit provision doesnt confer standing. However, he believes that Congress can define injuries and articulate sufficient

chains of causations that will give rise to cases and controversies where there was not an injury before. Potential Consequences citizen suit provisions in under environmental statutes are unconstitutional except in instances where the plaintiff can otherwise demonstrate an injury sufficient for standing. o FEC v. Atkins (1998) Plaintiffs has standing so long as they can show a personal, concrete injury. Court held that plaintiffs had standing to challenge a decision of the Federal Election Commission that the AIPAC was not a political committee subject to reporting requirements and regulation under the 1971 Act. Act permitted standing to any aggrieved party federal statute created a right to information and the denial of this right was a concrete injury sufficient for standing. The Court explained that unlike Richardson, there is a statute which . . . does seek to protect individuals such as respondents from the kind of harm they have suffered, i.e., failing to receive particular information about campaign-related activities. Clarifies Lujan Congress can create rights that would not otherwise exist (by statute) and the alleged violation of those rights is sufficient for standing, even under a broad citizen suit provision and even where the injury is widely-shared in society. o Professor Tylers Explanation the context in which the right is created matters. When Congress defines a right and an injury, in relation to a non-discretionary duty, nothing is harmful by Congress saying how the law should be implemented and enforced. However, if Congress defines a right and an injury in relation to a discretionary duty, Justice Scalias argument (in Lujan) has some merit. Nature of the underlying right asking whether the right that has been created lends itself to judicial enforcement and will lead to a more coherent body of law. (5) Standing to Assert the Rights of Others General Rule parties to a lawsuit could only assert their own rights or immunities. Plaintiffs cannot present the claims of third parties who are not part of the lawsuit. o Rationale ban on third-party standing avoids the adjudication of rights which those before the Court may not wish to assert. Requiring people to litigate their own claims improves the quality of litigation and decision-making. o Prudential requirement rule against third party standing is not a constitutional requirement; its a rule of self-restraint (for the Court) where the issues are speculative and not well-defined. Plaintiff must meet the constitutional standing requirements of injury, causation, and redressability for his own claim before he can assert the rights of third parties. o Tileston v. Ullman (1943) SCT upheld the dismissal of a physicians constitutional challenge for a state statute prohibiting the use of contraceptives because his claim was based on the rights of the patient, not right of the physician. o McGowan v. Maryland (1961) prosecuted store employees raised customers First Amendment rights in response to Sunday sales law. SCT held that injuries

were too far apart; economic injuries for plaintiffs versus religious freedoms for customers; the customers could bring the suit for themselves. Exception Close relationship b/w plaintiff and third party o Craig v. Boren (1976) Oklahoma adopted a law permitting women to buy 3.2 percent alcohol at 18, but prohibited men from buying until they were 21. Male plaintiff was suing for gender discrimination, but he turned 21, and his claim was therefore moot. Vendor (a bartender) sought to challenge the law on behalf of male customers between the ages of 18 and 21. The bartender alleged that she suffered economic loss from the law, thus fulfilling her constitutional standing requirements under Article III. Close (and unique) relationship SCT allowed vendors to assert the rights of their customers because vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or function. o Kowalski v. Tesmer (2004) plaintiffs were lawyers who sought to challenge provisions of Michigan law that made the appointment of appellate counsel discretionary,r rather than a matter of right for indiginent defendants who pleaded guilty or nolo contendere. Court assumed that plaintiffs had sufficient Article III standing, based on the likelihood of lost revenues, but refused to accord them third-party standing to assert the rights of indigent defendants. Closeness of relationship the attorneys do not have a close relationship with their alleged clients, and indeed, have no relationship at all. Note court denied standing, but upheld the claim on the merits in a follow-on case the next year. It is very rare for this to happen. Professor Monaghan litigants are asserting their own rights when they are seeking to avoid restrictions to interact with third persons who cannot constitutionally be prevented from interacting in a particular way. Professor Fallon re-characterize third-party rights as first-party rights. Under the presuppositions of Marbury, everyone has a personal constitutional right not to be sanctioned except pursuant to a constitutionally valid rule of law. o Application to Craig v. Boren the beer vendor had a personal right not to be punished criminally for violating the constitutionally invalid Oklahoma statute that she challenged in the SCT. o Future Application if the premise is that everyone has a personal right not to be sanctioned under a constitutionally invalid rule of law, then all actual and potential defendants in a legal enforcement proceeding are entitled to challenge the constitutional validity of the rule of law involved against them. o Possible Limitation to individuals that face a threat of legal coercion; said to have a Marbury-based entitlement. Still be a question about the Kowalski plaintiffs and other plaintiffs who face no threat of legal coercion.

Al-Aulaqi (Handout) Father alleged emotional harm, which was not sufficient to establish an injury. [P]laintiff maintains that he, too, will be injured by defendants' use of lethal force, since defendants' extrajudicial killing of Anwar Al-Aulaqi would permanently sever plaintiff's relationship with his adult child. o Third Party Standing considerations (1) a close relationship and an identity of interests between the litigant and the third party; (2) some hindrance to the third party's ability to litigate on his own behalf Powers v. Ohio implied that a litigant must satisfy all of the prudential third party standing criteria in order to be accorded third party standing. o Analysis potential hindrance because enemy, but plaintiff cannot meet the close relationship requirement because their interests are not aligned plaintiff's interests are potentially in conflict with those of his son, who does not want to use the court system. Qui Tam Actions Congress can authorize third parties to bring actions on behalf of the federal government for some injury to the government. o False Claims Act authorizes private citizenscalled realtorsto bring qui tam actions on behalf of the United States seeking civil penalties and damages payable to the Treasury against any person who procured payment on a false claim against the United States. o Vermont Agency v. United States ex. rel Stevens (2000) relator had Article III standing. The realtor, as the assignee of the Governments claim, has standing to assert the injury in fact suffered by the assignor.

4) The Political Question Doctrine Definition subject matter inappropriate for judicial review; proper cases before federal courts alleging constitutional violations should not be ruled on because constitutional interpretation in these areas should be left to the politically accountable branches. Policy Rationales o Preserves Judicial Legitimacy o Political branches have superior expertise o Inter-branch friction self-interest of judiciary disqualifies the court from ruling on certain matters. o Separation of Powers minimizing judicial intrusion into the operations of other branches of government. o Criticism when the judiciary is presented with a proper case, it can say what the law is which means it can decide any issue in the case that is necessary to resolve it (Marbury). Luther v. Borden (1849) involved the Guarantee Clause, which provides that the United States shall guarantee to ever state in the union a republican form of government. Luther alleged that Sheriff Borden trespassed on his property, but Bordens defense was that he had lawful authority to do sohe was a state police officer and he

suspected that Luther committed crime. Luther claimed that Borden was not a police officer because it was not pursuant to the authority of the Rhode Island state government, but instead, the charter government. o Holding case involved a political question that could not be decided by the federal court. Under this article of the constitution, it rests with Congress to decide what government is the established on in a state. Rationale the judiciary doesnt just sit to resolve issues, but it sits to decides cases. o Relationship with Article III Standing when the court is talking about political questions, we are past the article III issue this is a good case here. The question now is whether the court gets to decide all issues implicated by this case. Difference with standing standing question goes to whats a constitutional case. The political question doctrine goes to what issues can the court decide to resolve the case. Nixon v. United States (1993) impeached federal district court judge convicted of making false statements to a grand jury; refused to resign from the bench and continued to collect his judicial salary while in prison. Impeached by the House and the Senate. The Senate, in accord with its rules, created a committee to hold a hearing and made a recommendation to the full Senate. The Committee recommended removal from office and the entire Senate voted accordingly. Claimed that impeachment was improper because the senate rules require the Senate to try in front of the entire senate, not just a committee. o Holding (Justice Rehnquist) Article I, 3 demonstrate textual commitment of impeachment to the Senate. Framers intended that there would be two proceedings against office holders charged with wrongdoing: a judicial trial and legislative impeachment proceedings. Framers deliberately separated the two forums to ensure independent judgments, and judicial review of the Senates trial would introduce that same risk of bias (the framers intended to avoid). o Justice Souter Dissent coin-flip argument; if the Senate were to act in a manner seriously threatening the integrity of its results, conviction, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply a bad guy, judicial interference might well be appropriate. Political Questions and the Judicial Function o Classical Position (Professor Wechsler) PQ decisions consist of series of interpretations of the substantive meaning of the constitution; only if the Constitution commits the determination to another branch should the SCT abstain. o Prudential Position (Professor Bickel) political question doctrine appropriately reflects prudential concerns about the exercise of judicial power. It cannot exist with Marburys conception of the federal courts. Important political question doctrine affords the judiciary the ability to avoid controversial constitutional questions and limits the courts role in a democratic society.

o Professor Henkin (endorsed by Professor Tyler) there is no such thing as a political question doctrine; the doctrine is an unnecessary, deceptive packaging of several established doctrines. Bogus Political Questions Court is actually deciding the issue and concluding (on the merits) that what the political branches did was constitutional. Henkin believes we are saying that the Constitution imposes no constraint on the exercise of power by the political branches. To the extent that the Constitution imposes no constraint, we do not need the political question doctrine (to abstain) because the party has no claim. Reconceptualizing Nixon Constitution contains no limitation on the form of trial in the Senate, and thus, the discretion is fully committed to the Senate. This isnt a real political question and since no constraint, Nixon loses. (See Justice White Concurrence). True Political Questions where there are constraints in the Constitution, but those constraints are not judicially enforceable. Example two people get into a car accident. One person sues the other based on the injury, but the defendant raises diplomatic immunity since hes from the Government X. However, Department of State sends a note stating that they do not recognize X as the true government. What should the court do in this case? Henkins view determining who is or is not a proper diplomat is a political question, but Henkin believes that its a ruling on the merits. Court is suggesting that under the Constitution, the President has plenary authority to determine what government to recognize, and by definition, what individuals are diplomats. No constraint of authority in the Constitution, so the Presidents choice is always constitutional, so the Presidents decision is binding on the judiciary. Baker v. Carr (1962) whether an equal protection challenge to the apportionment of the Tennessee Legislature raised a political question. o Court identified subject areas in which challenges to Congressional or Executive authority had sometimes been thought to raise non-justiciable political questions: Foreign relations Questions involving dates of duration or hostilities Formal validity of legislative enactments Status of Native American tribes Questions about whether a republican form of government exists. Six Baker Factors Court distilled a list of governing criteria for determining whether a political question existed (but Nixon suggested last four factors are meaningless): o (1) Textually demonstrable constitutional commitment of the issue to a coordinate political department.

o o

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Meanings (1) Assignment of discretion to other branch (Marbury) or (2) Assignment of exclusive interpretive authority to another branch. Powell (1969) PQD doesnt block evaluation of whether House requirements for seating members were constitutional. (2) Lack of judicially discoverable and manageable standards for resolving the question. Baker said sufficient standards exist for racial gerrymandering Vieth (2004) Justice Scalia cited absence of judicially manageable standards as ground for holding PQD blocked challenge to political gerrymander of PA voting districts Justice Stevens dissent Court should use same framework as it uses for racial gerrymandering. Justice Souter dissent laid out various judicially manageable standards that court could use w/o choosing one; faulted Stevens approach b/c not discernible in the constitution although manageable. (3) Impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion (4) Impossibility of the courts undertaking independent resolution without expressing lack of the respect due to coordinate branches of government. Criticism too conclusory to help in identifying political questions. See Munoz-Flores (1990) PQD doesnt block suit challenging federal law because originated in Senate in violation of Origination Clause because disrespect insufficient to create PQ otherwise all judicial review precluded by PQD. (5) Unusual need for questioning adherence to a political decision already made (6) Potential embarrassment from multifarious pronouncements by various departments on one question Professor Tyler is highly critical of this factor. Hamilton suggests that courts have neither the force nor the will insulated from outside pressure. This shouldn't be a reason for the judiciary to shirk from doing its job.

Al-Aulaqi (Handout) Father wanted a declaration setting forth the standard under which the United States can select individuals for targeted killing as well as an injunction prohibiting defendants from intentionally killing Anwar Al-Aulaqi unless he meets that standard. Court held that the type of relief that plaintiff seeks only underscores the impropriety of judicial review. o National Security, Military, and Foreign relations are political questions quintessential sources of political questions and unlike the political branches, the Judiciary has no covert agents, no intelligence sources, and no policy advisors. o Court lacks required competence Courts are thus institutionally ill-equipped to assess the nature of battlefield decisions, or to define the standard for the government's use of covert operations in conjunction with political turmoil in

another country. These types of decisions involve delicate, complex policy judgments with large elements of prophecy, and are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility.