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Chapter 6 - The role of the Judiciary

Part II

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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 court’s 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.

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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?

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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?

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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?

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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?

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In Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979) (en banc), rev’d, 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?

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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?

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Can Congress Change the Court's Behavior?

Why can’t 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

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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?

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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?

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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?

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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?

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Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff’d, 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?

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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?

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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?

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